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Practice - Western Australia - Recall of an order made under legislation retrospectively repealed.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 That Act repealed the legislative basis under which the plaintiff applied for and was granted leave to commence common law proceedings against his employer.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] WADC 160
Decision Date

CaseChat Overview and Summary

In Gould v David Brown Gear Industries Ltd, the plaintiff, Peter Brett Gould, sought leave to commence common law proceedings against his employer, David Brown Gear Industries Ltd, under the Workers' Compensation Act. The defendant argued that the plaintiff's application for leave was invalid due to a legislative amendment that occurred on the same day as the grant of leave. The key issue for the court was whether the order granting leave was valid and enforceable given the legislative changes.

The court considered the Interpretation Act and the Workers' Compensation and Rehabilitation Amendment Act, which repealed the provisions under which the plaintiff sought leave. The court concluded that the order granting leave was ineffective because the legislative basis for such leave no longer existed at the time the order was made. Furthermore, the court found that the plaintiff could not benefit from the repealed provisions, rendering the order useless. The court also noted that the plaintiff's reliance on certain precedents did not support his position.

Ultimately, the court determined that the order granting leave should be recalled as it lacked a legislative basis and could not benefit the plaintiff. The court stayed the proceedings and suspended all caseflow management milestones to await the outcome of pending appeals on related issues. This decision underscores the importance of legislative timing and its impact on the validity of court orders.

Orders