Gould v David Brown Gear Industries Ltd - [2000] WADC 160

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GOULD -v- DAVID BROWN GEAR INDUSTRIES LTD [2000] WADC 160

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 14 JUNE 2000

DELIVERED : 23 JUNE 2000

FILE NO/S: CIV 3938 of 1999

BETWEEN: PETER BRETT GOULD
Plaintiff
AND
DAVID BROWN GEAR INDUSTRIES LTD
Defendant

Catchwords:

Practice - Western Australia - Recall of an order made under legislation retrospectively repealed.

Legislation:

Interpretation Act 1984

Workers' Compensation and Rehabilitation Amendment Act 1999

Result:

Order recalled.

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendant: Mr J T Schoombee

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Downings Legal

Case(s) referred to in judgment(s):

Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1913) 16 CLR 245
Hunt v Multiplex Construction Pty Ltd, unreported; DCt of WA; Action No 4700 of 1999; 8 March 2000
Pillinger v Ropework Services International Pty Ltd, unreported; SCt of WA; Library No 7976; 10 May 1989
The Queenv The Industrial Court of South Australia; Ex parte General Motors-Holden's Proprietary Limited (Gnatenko's Case) (2) (1976) 43 SAIR 1027

Case(s) also cited:

Bingham v English (1996) 17 WAR 226
Chalmers v P & O Ports Ltd [2000] WADC 9
Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589
In re Harrison's Share Under a Settlement [1955] 1 Ch 260
Millner v Raith (1942) 66 CLR 1
Norman v Norman (1992) 6 WAR 372
Templeton v Hamersley Iron Pty Ltd [2000] WADC 29
Yao v MIEA (1996) 69 FCR 583

DEPUTY REGISTRAR HEWITT: In this matter the plaintiff filed a writ of summons on 13 October 1999 pursuant to leave granted under the provisions of the Workers' Compensation Act on 5 October 1999. The defendant now applies for an order setting aside the grant of leave and the writ. The basis of that application is the fact that on 5 October 1999 (as I understand it in the afternoon of that day) the Royal Assent was received to the Workers' Compensation and Rehabilitation Amendment Act. That Act repealed the legislative basis under which the plaintiff applied for and was granted leave to commence common law proceedings against his employer. The materials before me establish the fact that the order was made in the morning of 5 October 1999.
Section 21 of the Interpretation Act 1984 provides:
"Where any written law, or portion of a written law, comes into operation on a particular day, it shall come into operation at the beginning of that day.
Section 2 of the Workers' Compensation and Rehabilitation Amendment Act 1999 provides that certain nominated sections including s 32 of the Act were to come into operation upon the day on which the Act received the Royal Assent. Section 32(5) operated to repeal the pre-existing s 93D, s 93E and s 93F and to substitute a new regime governing common law actions by workers against employers. Prima facie therefore the granting of the Royal Assent on the afternoon of 5 October 1999 had the effect of repealing from midnight the night before the provisions under which leave to commence proceedings had been earlier granted in the morning of 5 October 1999. It is therefore argued by the defendant that there was no legislative basis for the granting of the orders made. Those orders have not yet been extracted and the defendant therefore invites me by this application to withdraw those orders and to dismiss this application for 93D leave. Additional relevant considerations are to be found in s 32(6) and s 32(7) of the amending Act. Subsection 6 defines the assent day to mean the day upon which the Act received the Royal Assent and subsection (7) is in the following terms:
"The amended provisions do not affect the awarding of damages in proceedings -
(a)commenced before the assent day; or
(b)for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
It is argued that the present proceedings were not commenced before the assent day nor were they commenced pursuant to a grant of leave given before that day. It therefore follows on the argument advanced by the defendant that the new provisions which are contained in the substituted s 93D requiring determinations and elections are relevant to the common law action which has been commenced by this plaintiff. The issue as to whether or not an election is required before an action can be commenced is one to which I gave attention in the case of Hunt v Multiplex Construction Pty Ltd, unreported; DCt of WA; Action No 4700 of 1999; 8 March 2000. Without troubling to repeat the gist of that decision I there found that the registration of an election in the prescribed manner should be regarded as an element in an action for damages for personal injury commenced by a worker against his employer and any action commenced without those steps in place is defective and should be struck out. That decision is under appeal to a Judge of this Court and is in conflict with other decisions given by Registrars within this Court. Therefore insofar as that issue is raised for determination, in my view it should await the outcome of the appeals which are currently pending.
Section 37 of the Interpretation Act provides:
"Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
…
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
…
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."
The argument therefore advanced by the plaintiff is that by the granting of leave on the morning of 5 October the plaintiff obtained a vested right to pursue a common law proceeding against his employer and the fact that events later on that day had the effect of retrospectively repealing the relevant section did not divest him of those rights.
The difficulty which I have with the argument advanced by the plaintiff is that the grant of leave in his favour appears to me to be ineffective to confer any right upon him at all. The reason for that comment is the fact that it cannot be said on a reading of s 32(7) of the amending Act that leave was given before the assent day and as a consequence it appears to me that the provisions of s 93(D) of the Workers' Compensation and Rehabilitation Act (as currently enacted) will prevail, namely, that damages can only be awarded if the terms of that section are satisfied.
In argument before me the plaintiff developed a number of lines of argument one of which was that when an order has been acted upon it is not appropriate to exercise the power to recall that order. In this case the plaintiff has issued a writ pursuant to the grant of leave and therefore the plaintiff argues that it is not appropriate to recall that order. Boiled down to its essentials that argument means that these proceedings should not be by way of an application to recall the order but by way of appeal against the order. The defendant has referred me to a decision of the Supreme Court of South Australia in The Queen v The Industrial Court of South Australia; Ex parte General Motors-Holden's Proprietary Limited (Gnatenko's Case) (2) (1976) 43 SAIR 1027. In that case the Court had previously made absolute an order nisi of prohibition directed to the Industrial Court. The order had not been sealed and the federal award upon which the decision was based was varied in a way which undermined the reasoning which led to the granting of the order. In that case Chief Justice Bray, with whom the other members of the Court agreed, concluded:
"When a Court has made an order and before that order has been perfected by sealing and entering it is discovered that the order was wrong, whether by the ex post facto intervention of the legislature or an authority validly set up by the legislature as here, or whether by the declaration of the law in a contrary sense by a higher tribunal in some other case, the proper course is for the Court in question to recall its order and instead to make whatever order is appropriate in the new state of the law or the newly discovered state of the law as the case may be."
That in effect is what the defendant invites me to do here. The authority relied upon for the proposition advanced by the plaintiff is Pillinger v Ropework Services International Pty Ltd, unreported; SCt of WA; Library No 7976; 10 May 1989. That, as I understand it, is a decision by the then Master of the Supreme Court as that position existed within the Supreme Court before the Master was elevated to become a member of the Bench. Its value as a precedent here strikes me as questionable. It was there held that an order which has been acted upon should be regarded as one which has passed the seal of the Court but nonetheless the Court retained a power to vary such an order. In my view the general rule is that if an order has not been extracted then it can be withdrawn, altered or modified. In my view the authorities establish that the power is to be exercised judicially with an eye to what is just in the circumstances. In reaching those conclusions I rely generally on the commentary contained in Seaman's Civil Procedure Western Australia at par 63.0.7 and par 63.0.9.
The plaintiff additionally relied on the authority of Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1913) 16 CLR 245. Particular reliance is placed upon a passage in the decision of Chief Justice Griffiths at p 259 where he said:
"… it would require language 'much more explicit' than that of sec. 4 to justify the Court in holding that the legislature 'intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting.'
It would, indeed, in my opinion, require very clear and explicit words to validate retrospectively supposed judicial proceedings which were wholly null and void when taken. The consequences of such an enactment would be very serious."
The case involved a case stated under s 31 of the Commonwealth Conciliation and Arbitration Act by the President of the Commonwealth Court of Conciliation and Arbitration. The case stated arose because the Court of Conciliation and Arbitration had ruled itself to have no jurisdiction to entertain a claim made by the Association since it was not validly registered. Subsequent to that determination the Commonwealth amended relevant legislation in a manner which had the effect of retrospectively validating the registration of the Association. The case stated for the attention of the Court was, insofar as it is relevant to the matter before me as follows - Has this Court (the Court of Conciliation and Arbitration) now that the Commonwealth Conciliation and Arbitration Act 1911 has been passed, power to make an award in this case at the instance of the claimant? In answer to that question the Judges took the view that the correct answer was yes subject to the qualification that the effect was only to validate the action from the date of the passing of the Act.
On my analysis of this case I am unable to see that it brings any comfort to the plaintiff. The effect of the decision appears to have been that up until the passing of the Act the decision of the Court that it had had no jurisdiction to entertain the suit remained in force but it was thereafter by virtue of the Act empowered to entertain the suit and to determine it. Presumably the earlier decision regarding the jurisdiction of the Court contained various orders including costs orders and the like and it may well be that the preservation of the existing judgment operated to preserve those orders. The case is not explicit and it is not possible for me to make a more detailed analysis save to say that in my view this case does not support the proposition which is advanced by the plaintiff. In my view this matter comes down to a relatively simple analysis. On 5 October 1999 I made an order granting the plaintiff leave to commence proceedings. By virtue of the interaction of the Interpretation Act and the Workers' Compensation and Rehabilitation Amendment Act 1999 the provisions under which I purported to grant leave to commence those proceedings are deemed to have ceased to exist at the time those orders were made. Additionally on my analysis of the Workers' Compensation Act, as it presently stands, the orders are of no use to the plaintiff since he is not able to bring himself within the transitional provisions of the amended Act as a litigant who had been granted leave under the previous provisions before the assent day, that day being 5 October 1999. It therefore follows that whether the order remains or falls it is of no use to the plaintiff and in my view the plaintiff, if he is to pursue his claim, will need to rely on the Act as it has been recast and in particular in s 93E and s 93F. In summary therefore it is my finding that the orders which I made:
(a)have no legislative basis;
(b)cannot operate to the benefit of the plaintiff;
and as a consequence I am of the view those orders should be withdrawn.
As to whether or not the existing action should be struck out I refer to my earlier comments and particularly to the case of Hunt v Multiplex Construction Pty Ltd. Until Judges of this Court have had the opportunity to consider the conflicting decisions which have been delivered by Registrars I think it counterproductive and wasteful of Court resources to make orders striking out actions, although on the basis of the reasoning which I have previously adopted that is the order I would be inclined to make in this case.
I intend however to make an order staying this action until further order and suspending all caseflow management milestone within this action to await the outcome of the appeal.