Hanna-Pauley v David Jones Ltd

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HANNA-PAULEY -v- DAVID JONES LIMITED [2004] WADC 69

CORAM: WILLIAMS DCJ

HEARD: 31 MARCH 2004

DELIVERED : Delivered Extemporaneously on 2 APRIL 2004 typed from tape and edited by Trial Judge

FILE NO/S: CIVO 42 of 2004

MATTER :In the Matter of Section 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 as amended

BETWEEN: CABRINI FRANCES HANNA-PAULEY
Plaintiff
AND
DAVID JONES LIMITED
Defendant

Catchwords:

Workers' compensation - Alternative rights against employer for damages at common law - Application for leave to bring proceedings

Legislation:

Interpretation Act 1984

Workers' Compensation and Rehabilitation Act 1981

Workers' Compensation and Rehabilitation Amendment Act 1999

Result:

Plaintiff granted leave to bring proceedings

Representation:

Counsel:

Plaintiff: Mr T P Heard
Defendant: Mr M Odes QC

Solicitors:

Plaintiff: Bradford & Co
Defendant: Greenland Brooksby

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

Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Henderson v Kcut Pty Ltd and Anor [2004] WADC 13
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

Case(s) also cited:

Kuligowski v Metrobus (2002) 26 WAR 137
Lawrie v Dyson's Packaging Pty Ltd, unreported; DCt of WA; Library No D980261; 16 September 1998
Lend Lease Employers Systems Limited v Lyndon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998
S G R O v New Cement Co Pty Ltd (1995) 15 SR (WA) 44
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Thomas v O'Shea (1989) Aust Tort Reports 80-251
Toolan v Metropolitan (Perth) Transport Trust (2001) 25 WAR 1
Waddington v Silver Chain Nursing Association, unreported; DCt of WA; Library No D970214; 16 July 1997

WILLIAMS DCJ: This is an urgent application the part of the plaintiff requiring me to deliver reasons within 24 hours or the plaintiff may be effected by the Statue of Limitations.
The application deals with the transitional provisions of s 32(7) of the Workers' Compensation and Rehabilitation Amendment Act 1999 ("the amending Act") and its interplay with s 37 of the Interpretation Act 1984. ("the Interpretation Act")
The amending act changed the regime of awarding damages at common law. New procedures were introduced to repeal the old regime. Section 32(7) of the amending Act provides:
"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 continued to apply in relation to those proceedings."
The assent day was 5 October 1999.
Section 37 of the Interpretation Act 1984 relevantly provides:
"(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears —
…
(b)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(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.
(2)The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."
Prior to the amending Act an employee who suffered a work related disability was entitled to claim common law damages only if the employee had been given leave by the District Court to do so (s 93D(4) of the repealed Act). Under the old regime that employee had no right to common law damages unless and until such leave to commence such proceedings had been given: Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428, [21], [61] (Dossett).
The plaintiff, who was injured on 6 April 1998 and therefore prior to 5 October 1999, had not taken proceedings of any kind prior to the assessment date.
In Dossett the High Court held that:
"(1)The former provision in s 93D of the Workers' Compensation Act continued to apply to the pending application by the appellant. At [19], [45] and [88].
(2) Section 32 (7) of the amending Act did not effect an implied repeal of either s 37(1) or (2) of the Interpretation Act 1984.
(3)It followed from the application of the specific provision in s 37(2) of the Interpretation Act that the limited savings provision in s 32(7) of the amending Act did not exhaustively deal with the appellant's position. There was left untouched whatever advantage the appellant otherwise obtained by the operation of s 37(1) of the Interpretation Act. (Per Gummow, Hayne & Heydon JJ at [32])."
It is the submission of senior counsel for the defendant that this case is distinguishable from Dossett, where, as at the assessment date an application for leave to commence proceedings was pending. If the ratio of the High Court applied to persons who were injured before the assessment date but who had not commenced proceedings at all before that date the Court would have made clear that specific finding. Why would the Court have wasted its time on the state of proceedings before the assessment date if the old provisions were saved whether proceedings had been commenced or not? (Dossett at [29], [30] and [35]).
In my view the question can be put the other way: If the ratio of the High Court did not apply to persons who where injured before the assessment date but who had not commenced proceedings at all before that date the Court would have made clear that specific finding. I am unable to find in the Court's reasons anything to the effect that there should be a difference between an injured person who has commenced proceedings before the assent date and an injured person who has not. In my view the case is not distinguished from Dossett.
I note that Macknay DCJ in Henderson v Kcut Pty Ltd and Anor [2004] WADC 13 reached a similar conclusion.
The defendant next says that there is an issue estoppel arising from the fact that on 27 July 2001 a Review Officer under the Workers' Compensation and Rehabilitation Act 1981 ("the Workers' Compensation Act") upheld an application by the defendant to discontinue weekly payments, finding that any injury that the plaintiff may have suffered had settled. She ordered that the weekly payments be discontinue.
There is an agreement between counsel that an application under s 62 of the Workers' Compensation Act, that being the section under which the application was made, is a final decision supporting an issue estoppel where the circumstances before the Court now are exactly the same as they were at the time of the original decision: Waddington v Silver Chain Nursing Association (1998) 20 WAR 269 at 279C, 281B.
The affidavit of Lea Glenda Rafferty sworn 26 March 2004 in opposition to the application at par 4 sets out the medical reports which were before the review officer at the hearing on 26 March 2004.
The affidavit of the plaintiff in support of the application sworn 9 March 2004 pars 22 to 27 annexes various medical reports in support of the plaintiff's application.
It is clear that the medical reports relied on by the plaintiff are not the same as the medical reports which were before the Review Officer.
It is therefore not the case that the circumstances before the Court now are exactly the same as they were at the time of the original decision.
It follows therefore that the case for issue estoppel has not been made out.
The defendant next says that on the evidentiary material the plaintiff has not made out a case for leave to be granted.
It is the defendant's submission that the plaintiff's application is disingenuous. The plaintiff's application makes no reference to other accidents that have occurred to the plaintiff after the accidents the subject of these proceedings. The affidavit of Lea Glenda Rafferty sworn the 26 March 2004 states that the plaintiff has made claims for damages for injuries allegedly sustained by her on 15 April 2000 as the result of an alleged fall and on 20 March 2001 as a result of an alleged motor vehicle accident. The plaintiff should be expected to come clean by taking the Court into her confidence. The impression given is that the only injuries suffered by the plaintiff were those the subject of these proceedings when that is not the truth. As a result the plaintiff's credibility has been shot to pieces. Where there is an application for leave the minimum requirement is a full frank and honest disclosure and this has not been given.
The defendant further submits that the Court is not a rubber stamp and even if on a prima facie basis the injuries sustained have given rise to a persistent disability that the minimum prescribed figure of $135,000 would not be reached.
In my view the medical reports tendered by the plaintiff ground the appropriate evidence on which to grant leave to proceed. Mr Slinger's report of the 10 June 1999 states that it is possible that the plaintiff will be left with a permanent disability. Dr Maguire's report of 25 May 2000 states that the plaintiff has permanent loss of function. The report of Work Focus Australia Pty Ltd of the 12 April 2000, a rehabilitation service, stated that it was closing off rehabilitation for the plaintiff.
It follows that I am of the view that leave should be granted to the plaintiff to bring proceedings against the defendant.

[2004] WADC 69

2 April 2004 typed from tape and edited by Trial Judge