Harris v The Commonwealth of Australia - [2002] WADC 257

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HARRIS -v- THE COMMONWEALTH OF AUSTRALIA [2002] WADC 257

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 28 NOVEMBER 2002

DELIVERED : 12 DECEMBER 2002

FILE NO/S: CIV 2253 of 2001

BETWEEN: JEREMY MICHAEL HARRIS
Plaintiff
AND
THE COMMONWEALTH OF AUSTRALIA
Defendant

Catchwords:

Practice - Western Australia - Application to strike out action - Requirements of Safety, Rehabilitation and Compensation Act 1988

Legislation:

Crown Suits Act 1947

Limitation Act 1933

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Result:

The part of action relating to economic loss struck out

Representation:

Counsel:

Plaintiff: Mr R A Harrison
Defendant: Mr P R Shanahan

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Australian Government Solicitor

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

Commonwealth of Australia v Flaviano & Anor (1996) 40 NSWLR 199
Grogan v Commonwealth of Australia [1999] 1 Qd R 30
Sargent v ASL Developments Ltd (1974) 131 CLR 634

Case(s) also cited:

Wardley Australia Ltd & Anor v The State of Western Australia (1992) 175 CLR 514

DEPUTY REGISTRAR HEWITT: The matter before me is the defendant's application filed on 19 September 2002 seeking orders that the plaintiff's action be dismissed and that he pay the defendant's costs of the application and of the action.
It is not entirely clear the precise nature of the application itself in the sense of whether it is a summary judgment application and subject to the rules and practice procedures relating to such applications or whether it is an application of a different colour.
It appears to me that it is appropriate to characterise the application as an attack on the plaintiff's action on the basis that action is an abuse of process, is doomed to fail, and should be ended without the parties incurring further expense in relation to it.
Whatever the nature of the application might be, in my view it raises an issue which needs consideration and determination and I now proceed to consider the merits of the matter.
The plaintiff is a former member of the Australian Army and he sues the Commonwealth of Australia as defendant for injuries he allegedly received in the course of his service with the defence forces.
The defendant argues that the plaintiff has failed to comply with the provisions of the Commonwealth Safety, Rehabilitation and Compensation Act 1988 as a consequence of which his action against it is unsustainable and should be dismissed.
The relevant provisions of the legislation are contained in pars 44 and 45 which I reproduce below:
"44 Action for damages not to lie against Commonwealth etc. in certain cases
(1)Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a)an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b)the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.
(2)Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.
45 Actions for damages - election by employees
(1)Where:
(a)compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b)the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25, or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.
(2)Where an employee makes an election:
(a)subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and
(b)compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.
(3)An election is irrevocable.
(4)In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee."
It is common ground that the Act is relevant and applicable to the circumstances of the present case.
The scheme of the Act is to abolish the entitlement of an employee of the Commonwealth, to bring an action for damages in respect of an injury suffered in the course of employment with the Commonwealth unless that employee has complied with the provisions of s 45. Section 45 reinstates the injured employee’s entitlement to commence proceedings against the Commonwealth for damages for non-economic loss suffered by the employee as a result of the injury in lieu of the statutory compensation which is provided for in earlier sections under the Act. The statute expresses it to be a precondition of the entitlement to commence proceedings that the employee should first have made an election in writing to institute the action or proceeding.
Some discussion took place in argument before me as to whether or not an election needed to be served but in the light of the facts of this case that is an issue with which I need not deal further.
Argument was also directed to the issue as to whether or not the issuing of a writ was itself a sufficient election within the meaning of the Act. In my view the provisions of s 45(2) make it clear that there must be a two stage process namely, firstly, the election and secondly the institution of proceedings. That position is supported by the decisions in Grogan v Commonwealth of Australia [1999] 1 Qd R 30 and the Commonwealth of Australia v Flaviano & Anor (1996) 40 NSWLR 199.
For these reasons I consider that the argument that the commencement of the writ itself was a sufficient election is doomed to fail and were that to be the only basis upon which the plaintiff resisted this application, the application would be bound to succeed.
There is however another matter which arises out of a correspondence between the Department of Defence and the solicitors acting for the plaintiff which culminates in a letter dated 10 August 2001 which commences "… We now propose to commence proceedings against the Commonwealth of Australia." and concludes with a request that the Department of Defence provide an address for service of the proceedings which the plaintiff proposed to issue.
The solicitors for the plaintiff have somewhat muddied the issue since they appear to be of the view that what is referred to as the Limitation Act 1933 (presumably the Western Australian Limitation Act1935) and the Crown Suits Act 1947 might have some relevance to the case. Although the communication has been confused somewhat by the solicitors apparent belief that those acts were in some way relevant, nonetheless in my view the overall thrust of the letter that the plaintiff intended to commence proceedings is clear.
It is argued on behalf of the applicant defendant that any notice of election must be couched in more precise terms than those contained in the letter of 10 August 2001.
In order to deal with that argument it is necessary to consider what constitutes an election.
"The words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other." (Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 646)
When I turn to the Act I firstly note that no particular form of words is required in order to make an election and I further note that the election is an election to institute an action or proceeding against the Commonwealth.
I am unable to perceive within the legislative framework any requirement to do anything more than give notice of intention to institute a proceeding. There appears to me to be no requirement that there must be, concurrent with that election, an express abandonment of other rights under the Act. I take the view that the expression of an intention to institute a proceeding has the automatic effect of removing the employee's entitlement to compensation under other provisions of the Act from the date of the election.
It is therefore my conclusion that the election, which was made by the defendant's lawyers in their letter dated 10 August 2001, was effective to satisfy the requirements of s 45 of the Safety, Rehabilitation and Compensation Act 1988 and that insofar as the plaintiff's claim seeks redress for non-economic loss, it is properly instituted and pursued.
It is to be noted however that in addition to his claim for non-economic loss, the plaintiff has incorporated a substantial claim for economic loss. On my interpretation of the statute the combination of s 44 and s 45 operate to disentitle the plaintiff from pursuing any such claim. Therefore, insofar as the application seeks to strike out the plaintiff's action, it shall succeed insofar as his action seeks compensation for economic loss.
I shall hear from counsel as to the most convenient way for the plaintiff to recast his claim in respect of that portion of his action which is viable.