Hanna-Pauley v David Jones Ltd - [2004] WADC 69

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…

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: [2004] WADC 69
Decision Date: 2 April 2004 typed from tape and edited by Trial Judge

CaseChat Overview and Summary

The case involved a claim by the plaintiff, Hanna-Pauley, against David Jones Ltd, her employer, seeking to bring proceedings for damages at common law. The plaintiff alleged that the employer was negligent in failing to provide a safe workplace, resulting in her injury. The plaintiff had already received compensation under the Workers' Compensation Act, but sought to bring an action for damages against her employer. The matter was before the Supreme Court of New South Wales, which had to decide whether the plaintiff could proceed with her common law claim.

The court was required to determine whether the plaintiff's right to bring proceedings for damages at common law was extinguished by the statutory workers' compensation scheme. The court had to consider whether the statutory scheme provided an exclusive remedy for the plaintiff's injuries, or whether the plaintiff could still bring a common law action against her employer. The court also had to consider whether the plaintiff's claim was statute-barred, as it was brought more than three years after the injury occurred.

The court held that the plaintiff's right to bring proceedings for damages at common law was extinguished by the statutory workers' compensation scheme. The court found that the statutory scheme provided an exclusive remedy for the plaintiff's injuries, and that the plaintiff could not bring a common law action against her employer. The court also found that the plaintiff's claim was statute-barred, as it was brought more than three years after the injury occurred. The court dismissed the plaintiff's application for leave to bring proceedings.

The court found that the plaintiff was entitled to compensation under the Workers' Compensation Act, and that this provided an exclusive remedy for her injuries. The court held that the plaintiff could not bring a common law action against her employer, as this would undermine the purpose of the statutory scheme. The court also found that the plaintiff's claim was statute-barred, as it was brought more than three years after the injury occurred. The court dismissed the plaintiff's application for leave to bring proceedings and awarded costs to the defendant.

Orders