Halliday v Australian Nickel Mines N/L
[2007] WADC 2
•15 JANUARY 2007
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HALLIDAY -v- AUSTRALIAN NICKEL MINES N/L & ANOR [2007] WADC 2
CORAM: DEANE DCJ
HEARD: 21 JUNE 2006
DELIVERED : 15 JANUARY 2007
FILE NO/S: CIV 2103 of 2004
BETWEEN: TREVOR HALLIDAY
Plaintiff (Respondent)
AND
AUSTRALIAN NICKEL MINES N/L (ACN 009 094 995)
First Defendant (Applicant)TITAN RESOURCES N/L
Second Defendant
Catchwords:
Workers Compensation & Rehabilitation Act 1981 - Workers Compensation & Rehabilitation Amendment Act 1999 - Construction of s 5(2) and s 5(3) of Workers Compensation (Common Law Proceedings) Act 2004
Legislation:
Nil
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff (Respondent) : Mr R E Keen
First Defendant (Applicant) : Mr J R Ludlow
Second Defendant : No Appearance
Solicitors:
Plaintiff (Respondent) : Marks & Sands
First Defendant (Applicant) : Dibbs Abbott Stillman
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
Barminco Investments Pty Ltd & Anor v O'Brien [2006] WASCA 88
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
General Steel Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jeanswest Corporation Pty Ltd v Archer [2004] WASCA 132
Newcombe v AME Properties Ltd (1995) 14 WAR 259
Packhard v Transport, Trading & Agency Co Ltd & Weir (1912) 14 WALR 191
Re Monger; Ex parte Cross [2004] WASCA 176
Transfield Pty Ltd v Rawstron [2005] WASCA 78
Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152
Case(s) also cited:
Burton v Shire of Bairnsdale (1908) 7 CLR 76
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
DEANE DCJ: In this matter the first defendant appeals against a decision of 17 May 2006 whereby a Deputy Registrar of the District Court dismissed its application for an order striking out the Statement of Claim and/or entering summary judgment against the plaintiff. The second defendant is not a party to this appeal, which is a hearing de novo. Before turning to the history of the matter, it should be noted that both parties to the appeal agree that the issue to be determined is the proper construction of s 5(3) of the Workers Compensation (Common Law Proceedings) Act 2004 ("the 2004 Act"). There follows from that the question of what difference, if any, exists between the concept of "proceedings" and "a proceeding". The question is therefore what law governs the plaintiff's claim as against the first defendant. The 2004 Act received Royal Assent on 25 October 2004. This action, being 2103 of 2004 was commenced on 17 September 2004 as against both the first and second defendants. A statement of claim dated 11 October 2004 was filed on 15 October 2004 and then on 22 November 2004 both the first and second defendant filed a single defence. There is no dispute that at all times the first defendant employed the plaintiff as a concentrator operator and it is also common ground that the plaintiff was working at Radio Hill mine site on or about 16 November 1998 prior to the Workers Compensation & Rehabilitation Amendment Act 1999 ("the 1999 Act"), coming into force.
The plaintiff alleges, although the first defendant does not admit, that on that date he suffered personal injury by accident being an alleged disability. It would appear to be common ground, according to the affidavit of Zion Mathis, sworn 22 August 2005 that the plaintiff has claimed and received workers compensation in respect of the alleged disability and further that the plaintiff did not obtain leave to commence proceedings against the first defendant in respect of the alleged disability. The plaintiff did obtain leave to commence proceedings against the second defendant in respect of the alleged disability. It was the first defendant's application for an order striking out the Statement of Claim and/or entering summary judgment against the plaintiff on the grounds that the plaintiff was required to obtain leave to proceed against the first defendant and did not do so, that was dismissed by the Deputy Registrar.
The first defendant argues that when the writ issued leave was required and because the plaintiff's accident allegedly occurred prior to the 1999 Act receiving an assent on 5 October 1999, two consequences followed:
1.The plaintiff had a right from the date of the alleged accident to apply for leave;
2.The first defendant had a right not to have proceedings issued against it by the plaintiff without leave first being obtained.
Section 7(2) of the 2004 Act states "on and after the commencement day, no Court may hear or determine a former provisions matter" (it having the same meaning as in s 32(6) of the 1999 Act). Section 7(3) of the Act states "any former provisions matter that has been commenced but not determined before the commencement day is a nullity, and is taken to have been dismissed by operation of this subsection with no order for costs".
Counsel for the first defendant argued before the Deputy Registrar that the plaintiff's commencement of proceedings against it without leave, was not merely a procedural irregularity but was a nullity, relying on the judgment of Kirby J in Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at 24 where it was observed that the entitlement (and therefore also the requirement) to obtain leave before commencing proceedings "can hardly be described as procedural only". In Barminco Investments Pty Ltd & Anor v O'Brien [2006] WASCA 88 Steytler P noted that the amendments made to the 1999 Act were substantive in operation.
At the hearing of this appeal, counsel for the first defendant referred to judgments of the High Court in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 and Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33 but accepted that those two cases deal specifically with a New South Wales statute. However, counsel maintained that the situations were analogous to this matter to a degree.
In Western Australia from 1993 to 1999, one could not commence relevant proceedings without first obtaining the leave of the District Court, thereby requiring some curial involvement prior to proceedings commencing. The particular provision of the New South Wales legislation considered by the High Court, related to workers compensation legislation whereby a person could not commence proceedings, having made a claim, for a period of six months. In each of the two cases considered by the High Court, proceedings had been commenced prior to the expiration of that six month period, albeit that the Court was not required to be involved in granting leave to commence such proceedings. The argument on behalf of the first defendant is therefore that there is no real difference between the situation existing in Western Australia and that existing in New South Wales, in the sense that both provisions prevent commencement of proceedings unless certain criteria are met. In the end result however, counsel for the first defendant submits that a failure to comply or meet the criteria does not render any proceedings commenced a nullity, rather it is a procedural irregularity permitting a defendant to apply for summary relief. Where a party is required to obtain leave and fails to do so, the proceedings are not a nullity but may permit a defendant to apply for summary dismissal of the proceedings. Further, it is submitted on behalf of the first defendant that a failure on the part of a defendant to raise or plead a point at the earliest opportunity does not amount to a waiver or estoppel, rather it is a question of the exercise of the Court's discretion when the party concerned applies for summary judgment or for the matter to be struck out. In both cases considered by the High Court in the particular circumstances that prevailed, it was considered that the Court below was correct in refusing the appellant's application to enter summary judgment or strike the matter out.
In this case counsel for the first defendant accepts that the factual history is very different from that in each of the two cases considered by the High Court and further concedes that the first defendant did not file a conditional appearance, nor did the defence filed raise the issue of the plaintiff's failure to obtain leave to proceed against the first defendant. However it is pointed out that there is both a single statement of claim and a single defence filed. It is said that the issue raised by the first defendant is of no interest to the second defendant but the practical result is that whatever the outcome of the plaintiff's claim against the first defendant, it could not affect the progress of the matter as against the second defendant.
The issue of the failure of the plaintiff to obtain leave to proceed against the first defendant was raised for the first time at a pre‑trial conference on 1 August 2005 following which the matter was adjourned sine die and the first defendant was given leave to make an application to strike out the matter within 21 days, which it then did on the twenty first day. In the end result the first defendant argues that the plaintiff would have been involved in much of the pre‑trial procedure in any event given the matter as it related to the second defendant and further that the first defendant's failure to raise the issue of failure to obtain leave against it in the defence filed should not be a bar to obtaining the relief sought.
The issues as to whether the proceedings instituted against the first defendant are a nullity or procedural irregularity and the application if relevant of O 20, r 19 or O 16 of the Rules of the Supreme Court are more appropriately addressed after the determination of the central issue raised in this appeal.
The substantive issue
Counsel for the plaintiff asserts that the application for leave that was granted was based on s 93D(5) of the Workers Compensation & Rehabilitation Act 1981 ("the 1981 Act") namely that the plaintiff was likely to have a future pecuniary loss resulting from the alleged disability of an amount that was at least equal to the prescribed amount. Section 93D(4) of the 1981 Act stipulated that proceedings were not to be commenced without leave of the District Court. However, counsel for the plaintiff points out that the particular section did not specify that leave be obtained against all possible defendants. The requirement that leave be obtained was said to be a procedural gateway whereby the Court needed to be satisfied that the required level of disability or loss had been reached. Counsel for the plaintiff argued before the Deputy Registrar that Transfield Pty Ltd v Rawstron [2005] WASCA 78 was distinguishable from the facts in this case because there the plaintiff had issued a writ and had later joined Transfield Pty Ltd as a second defendant before the 1981 Act was amended in 1999. It was argued therefore that the parties in that case were not affected by s 5(2) or s 5(3) of the Workers Compensation (Common Law Proceedings) Act 2004 (WA) ("the 2004 Act") which came into force on 25 October 2004.
Section 5(2) states:
"Despite s 37 of the Interpretation Act 1984 and any other law, written or unwritten, but except as otherwise stated in subsection (3) or in the amended provisions –
(a)the amended provisions apply to, and affect the awarding of damages in, a proceeding; and
(b)the former provisions do not apply to, or affect the awarding of damages in, a proceeding,
unless it is a proceedings –
(c)commenced before the assent day; or
(d)for the commencement of which a court gave leave under the former provisions before the assent day."
Section 5(3) states:
"Despite subsection (2), s 37 of the Interpretation Act 1984 and any other law, written or unwritten, but except as otherwise stated in s 6(4) –
(a)the amended provisions do not apply to, or affect the awarding of damages in, a proceeding; and
(b)the former provisions apply to, and affect the awarding of damages in, a proceeding,
that is a proceeding –
(c)commenced on or before the day in which this Act receives the Royal Assent with the leave of a court under the former provisions; or
(d)for the commencement of which a court gave leave under the former provisions on or before the day on which this Act receives the Royal Assent or on District Court file number WC 93D 1194/1998."
Counsel for the first defendant took the view that s 5(2) could not or was not to be interpreted that way because the section did not cure the fact that the plaintiff's proceeding was either a nullity or procedurally defective at the time it was commenced. Further, it was argued that if the submission on behalf of the plaintiff was adopted, the effect would be that the provisions of the 1993 Act would apply to the claim as against the second defendant but the provisions of the 1999 Act would apply as to the claim against the first defendant which in the circumstances would make little or no sense, particularly if there was an issue as to apportionment of liability between the first and second defendants.
It is necessary to examine something of the chronology of the legislation as it applies in this case. The 1999 Act was assented to on 5 October 1999. Section 32 of the 1999 Act, being the amending Act, made amendments with respect to the awarding of damages and related matters as well as referring to saving and transitional provisions. Section 32(5) of that Act repealed s 93D, s 93E and s 93F of the principal Act, being a reference to the 1981 Act. Section 32(6) states:
"In subsections(7) and (8) –
'amended provisions' means Part IV Division 2 of the principal Act as amended by this section;
'assent day' means the day on which this Act receives the Royal Assent;
'former provisions' means Part IV Division 2 of the principal Act before it was amended by this section.
(7)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."
Counsel for the plaintiff argues that this is a definition section intended to relate to the amendments in question.
Subsection (7) is said to be an explanatory subsection stating that the amended provisions do not affect the awarding of damages in the two particular circumstances nominated. It is submitted that the 2004 Act was an attempt to clarify in part the 1999 Act and that purpose is clearly stated in s 3 of the 2004 Act. Counsel for the plaintiff submits that the 2004 Act makes it clear as to what are amended provisions and what are former provisions. The amended provisions are s 93A to s 93G which were introduced by s 32 of that amending Act. They include s 93E which provides, as distinct from the 1993 Act, that one needs an agreement or determination relevant to the 30 per cent disability. In the 1993 legislation pursuant to s 93D one required the leave of the Court to commence proceedings. Therefore counsel for the plaintiff submitted that in the amending provisions, Parliament removed the requirement that a party wishing to commence proceedings obtain the leave of the Court to do so. Currently, the only criteria that must be met is that there be an agreement or determination relevant to a degree of disability that is not less than 30 per cent and that this be in accordance with the regulations. In addition, counsel for the plaintiff argues that such an agreement or determination need not necessarily exist at the time one commences proceedings but must exist before the matter is determined at trial; Jeanswest Corporation Pty Ltd v Archer [2004] WASCA 132 and Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152.
The 2004 Act, counsel for the plaintiff argues, sought to clarify the 1999 Act because when one compares s 5(2) of the 2004 Act, it is clearly an attempt to restate s 32(7) in the 1999 Act. Section 5(2) of the 2004 Act states:
"Despite s 37 of the Interpretation Act 1984 and any other law, written or unwritten but except as otherwise stated in s 37(3) or in the amended provisions –
(a)the amended provisions apply to, and affect the awarding of damages in, a proceeding; and
(b)the former provisions do not apply to, or affect the awarding of damages in, a proceeding,
unless it is a proceeding –
(c)commenced before the assent day; or
(d)for the commencement of which a Court gave leave under the former provisions before the assent day."
Section 5(3) of the 2004 Act is an attempt at further clarification and it reads:
"Despite subsection(2), s 37 of the Interpretation Act 1984 and any other law, written or unwritten, that accept as otherwise stated in s 6(4) –
(a)the amended provisions do not apply to, or affect the awarding of damages in, a proceeding; and
(b)the former provisions apply to, and affect the awarding of damages in, a proceeding,
that is a proceeding –
(c)commenced on or before the day on which this Act receives the Royal Assent with the leave of a court under the former provision; or
(d)for the commencement of which a court gave leave under the former provisions on or before the day on which this Act receives the Royal Assent or on District Court file number WC93D1194/1998."
The question then becomes what are the amended provisions as opposed to the former provisions. On a logical interpretation it seems that must be a reference, as counsel for the plaintiff submits, to s 93A to 93D introduced by the 1999 Act via s 32(5). That then includes the reference to s 93E. The former provisions must therefore refer to the definition provided in s 32(6) of the 1999 Act which includes s 93D which required the granting of leave by the Court to commence proceedings. Returning to s 5(2) of the 2004 Act, it is clear from par(a) that the amended provisions apply to and affect the awarding of damages in a proceeding (which means the former provisions do not apply) unless the proceeding was commenced before 5 October 1999 or for the commencement of which the Court gave leave. In this case the writ against both defendants was issued in September 2004, a considerable time after the assent day. Therefore, this matter does not fall within the first exception, nor does it fall within the second exception as against the first defendant. On this analysis, it would appear that the amended provisions, as distinct from the former provisions, apply as against the first defendant. It is necessary however to consider s 5(3) of the 2004 Act because it qualifies s 5(2). In particular, with reference to s 5(3)(c) it is clear that the former provisions would apply to this action and affect the awarding of damages, given that the action was commenced on or before 25 October 2004 which is the date the 2004 Act received the Royal Assent, but that did not occur with the leave of a court under the former provisions, being a reference to s 93D of the 1993 legislation. For that reason it cannot be said that the former provisions apply to this action as it relates to the first defendant, albeit leave was obtained in relation to the second defendant. The end result of that would appear to be that the action as against the first defendant is governed by the amended provisions which do not require the so‑called procedural gateway as reflected in s 93D of the 1993 legislation to be passed. However, it still remains incumbent on the plaintiff to meet the requirement concerning agreement or determination as to the necessary degree of disability prior to trial.
It is necessary to further consider the proper construction of s 5(3) of the 2004 Act. Counsel for the first defendant contends there is a significant difference between the wording in s 93D(4) of the 1993 Act and indeed s 32(7) of the 1999 Act as opposed to the wording in s 5(2) and (3) of the 2004 Act. Those latter subsections refer to "a proceeding" whereas the nominated sections in the 1993 and 1999 Acts refer to "proceedings". It is suggested by counsel for the first defendant that as they are different words or expressions, they are intended to have different meanings. The word "proceedings" referred to in the 1993 and 1999 Acts is said to mean a litigated claim against a particular defendant whereas the expression "a proceeding" in the s 5(2) and (3) of the 2004 Act means a court case involving at least one but perhaps more than one defendant. Following this line of argument, the proposition is put that the plaintiff's claim against both the first and second defendants should be classified for the purposes of s 5(2) and (3) of the 2004 Act as being an exception in that it is "a proceeding commenced on or before 25 October 2004 with the leave Court (albeit against the second defendant only) under the former provisions" meaning that the 1993 provisions therefore apply to the plaintiff's claim against the first defendant requiring that leave be obtained, which has not occurred. Counsel for the first defendant conceded that it is arguable in referring with a concept of "proceedings" and "a proceeding" the singular can include the plural, although "proceedings" is not specifically singular or plural. The suggestion is made that the word "proceedings" can mean a claim or a combination (I understand this to mean a number) of claims against a particular defendant. Counsel argued that "a proceeding" being a reference to action number 2103 of 2004 is a proceeding commenced with leave against the second defendant and therefore that action falls within s 5(3)(c). It then follows that the case is an exception as contemplated in s 5(2) and that therefore the 1999 provisions which require that leave be granted apply to the plaintiff's claim as against the first defendant.
This argument or analysis however has a degree of artificiality as counsel for the plaintiff pointed out. Here the plaintiff issued a writ against the first defendant without obtaining leave and that same writ against the second defendant against whom he had obtained leave. If instead of issuing one writ which was supposedly done for reasons of efficiency and good management, the plaintiff had issued two writs in that same set of circumstances, one would have a writ against the first defendant issued before the Royal Assent and therefore it would not fall within s 5(3)(c) of the 2004 Act and so the former provisions would not apply. That would result in the somewhat peculiar situation of a plaintiff issuing two writs essentially involving the same subject matter against two different defendants where he had leave in one instance and not obtained leave in the other instance. I do not accept the argument on behalf of the first defendant that the plaintiff's claim against the first defendant pursuant to s 5(2) and (3) is an exception being "a proceeding" commenced on or before the assent date (being 25 October 2004) with the leave of the Court under the former provisions because that is a situation or set of circumstances that relates to the second defendant only.
In the event that the 1981 Act (or 1993 Act) governs the plaintiff's claim as against the first defendant, it is common ground that the plaintiff did not obtain leave to issue a writ. That raises a question as to whether the proceedings instituted by the plaintiff against the first defendant without leave are a nullity which Newcombe v AME Properties Ltd (1995) 14 WAR 259 would suggest. On the other hand, Re Monger; Ex parte Cross [2004] WASCA 176 and Transfield Pty Ltd v Rawstron (supra) suggests this may be a procedural irregularity capable of remedy. In the end result however this is not an issue that needs to be determined in this matter because I accept the argument and reasoning of counsel for the plaintiff, that the claim against the first defendant is a proceeding or proceedings which are not a nullity as it was not necessary for the plaintiff to obtain leave from the Court to issue the proceeding or proceedings. Having reached the above view, it is nonetheless necessary to consider the issue as to whether the plaintiff's claim as against the first defendant should be struck out pursuant to O 20, r 19 of the Rules of the Supreme Court or whether summary judgment should be entered pursuant to O 16, r 1. Given the finding that the plaintiff did not require leave to issue a writ against the first defendant and that the 1999 Act governs that matter, there is little force in the submission that the plaintiff does not have an arguable case vis-à-vis the first defendant. In the end result, it does not matter greatly if the test is that proposed in Packhard v Transport, Trading & Agency Co Ltd & Weir (1912) 14 WALR 191; General Steel Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125 or if it follows the wording or test in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 (14 June 2006). The argument on behalf of the first defendant relevant to this aspect of the matter, namely that the 1993 Act applies and therefore they have a complete defence because leave was not obtained to issue the writ, falls away in the light of the earlier finding. In relation to the application of O 16, r 1, on the material before the Court and in particular in relation to the finding with respect to the central issue in this appeal the first defendant has failed to demonstrate that there is not a serious question to be tried in the action raised by the plaintiff. Further there is nothing before the Court to suggest that the action insofar as it relates to the first defendant is frivolous or vexatious. As matters currently stand there would appear to be a real question of fact or law to be tried and so it would not be proper to dismiss the action; Dey v Victorian Railway Commissioners (1949) 78 CLR 62. This point is a short one, given the result of the first defendant's appeal, but in my view it is appropriate to refer to it in passing despite the submission of counsel for the plaintiff that the defence filed does not rely on s 93D(4) of the 1981 Act or s 93E(3) of the 1999 Act.
0
11
1