Henderson v KCUT Pty Ltd & Anor

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HENDERSON -v- KCUT PTY LTD & ANOR [2004] WADC 13

CORAM: MACKNAY DCJ

HEARD: 28, 30 JANUARY 2004

DELIVERED : 4 FEBRUARY 2004

FILE NO/S: CIVO 7 of 2004

BETWEEN: BARRY NEVILLE HENDERSON
Plaintiff
AND
KCUT PTY LTD
First Defendant
WMC RESOURCES trading as WMC KWINANA NICKEL REFINERY
Second Defendant

Catchwords:

Workers' compensation - Degree of disability - Application for leave to bring proceedings - Whether grant of leave open - Whether plaintiff estopped due to prior refusal of grant of leave - Workers' Compensation and Rehabilitation Amendment Act 1999 (WA)

Legislation:

Interpretation Act 1984 (WA) s 37

Workers' Compensation and Rehabilitation Act 1981 (WA) s 93D

Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) s 32

Result:

Leave to bring proceedings against second defendant given

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     Mr V Hockless
Second Defendant         :     Mr P P McCann

Solicitors:

Plaintiff:     Paul O'Halloran & Associates
First Defendant             :     Kott Gunning
Second Defendant         :     Phillips Fox

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

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Radcliffe v Pacific Steam Navigation Co [1910] 1 KB 685
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

Case(s) also cited:

Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464
Kuligowski v Metrobus (2002) 26 WAR 137
Makhoul v Barnes (1995) 60 FCR 572
Mayne v Mayne Nickless Ltd t/as Wards Express, unreported; FCt SCt of WA; Library No 960223; 26 April 1996
McNair v Press Offshore Ltd & Anor (1997) 17 WAR 191
Re Monger; Ex parte Wilderness Equipment Pty Ltd [2003] WASCA 202
United Construction Pty Ltd v Maketic [2003] WASCA 138

MACKNAY DCJ: On 30 January 2004 I granted leave to the plaintiff to bring proceedings against the second defendant and indicated that I would give reasons for having made that order in due course.
The plaintiff's application for leave against the first defendant had earlier been dismissed, the plaintiff having already obtained such a grant in other proceedings.
The plaintiff alleges that on 4, 5 and 6 February 1998 he was subjected to "chemical poisoning" whilst working as a first class welder in the employ of KCut Pty Ltd at the second defendant's premises, where he was under the supervision of the second defendant.
As a result of that exposure the plaintiff says that he suffered injury, through the negligence of both the first defendant and the second defendant.
He wishes to sue the second defendant.
In the event that the allegations were made out, and as a result of the deeming provision in relation to "an employer" the Workers' Compensation and Rehabilitation Amendment Act 1981(WA) (the Act) s 175, the second defendant for the purposes of the Act would be regarded as the plaintiff's employer.
That being the case, under the provisions of the Act as it stood at the time of the accident, in particular s 93D:
"(1)Damages can only be awarded if the disability results in the death of the worker or it is a serious disability.
(2)A disability is a serious disability if, and only if –
(a)the degree of disability would, if assessed as prescribed in subsection (3), be 30% or more; or
(b)the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount.
…
(4)Proceedings in which damages are sought are not to be commenced without the leave of the District Court.
(5)Leave is to be given if –
…
(c)the court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount."
The plaintiff made an earlier application for leave on the basis of the likely extent of his future pecuniary loss in respect of each of KCut Pty Ltd and the second defendant, and on 6 October 1999 leave was granted by a Registrar in the first instance but not the second, although the evidence as to incapacity was necessarily the same.
The applications were heard separately.
It would appear from what counsel for the second defendant said that the plaintiff himself either sought the dismissal of the application against the second defendant, or else did not oppose it.
It was of course not until 2002 that the Full Court made it clear, in Hewitt v Benale Pty Ltd (2002) 27 WAR 91 that leave against a deemed employer was required.
As a result of the passage of the Workers' Compensation and Rehabilitation Act 1999 (WA) (the amendment Act), and in particular s 32(5) of the amendment Act, s 93D of the Act was repealed and replaced with other provisions which removed any right or obligation to seek leave before bringing proceedings, but which contained other restrictions on the right to an award of damages.
The amendment Act was assented to on 5 October 1999.
It was also provided in the amendment Act s 32, in relation to the new provisions as to damages (the amended provisions):
"(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."
Following its coming into effect it was popularly thought that the amendment Act was retrospective in operation except as specifically provided, having regard to s 32(7), ie unless a worker had at least obtained leave to proceed under the former s 93D his claim at law was to be subject to the new provisions.
Mr Dossett was a worker who had not reached that point, although he did have a pending application for leave.
He said, however, that he was entitled to proceed under the earlier regime, and to obtain a grant of leave, in the light of the Interpretation Act 1984 (WA) (the interpretation Act) s 37.
And after earlier failures, the High Court agreed with him, in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69 delivered 4 December 2003.
With the relevant limitation period due to expire on 3 February 2004, and emboldened by the decision in Dossett, the plaintiff brought a further application for leave against the second defendant, having commenced further proceedings for the purpose, and as a matter of urgency.
The second defendant denied the plaintiff was entitled to leave, for three reasons.
1.Dossett is applicable only to a case where an application for leave was pending on the relevant date.
2.There is an issue estoppel arising from the Registrar's earlier dismissal, however that occurred, which prevents the plaintiff obtaining a contrary order, the basis of the application being the same.
3.On the evidentiary material, and if the earlier provision is still operative in the plaintiff's case, a case for leave had not been made out.
After a further affidavit was provided by the plaintiff, following an adjournment for the purpose, counsel for the second defendant very properly conceded that on that evidentiary material a factual case for leave had been made out, in the event that a grant of leave was available.
That concession was in my view properly made.
As to the two remaining issues.
1. The Interpretation Act 1984 (WA) (the interpretation Act) s 37 provides in part as follows:
"(1)Where a written law repeals an enactment, the repeal does not, unless 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."
It does not appear from Dossett that the High Court thought any "contrary intention" appeared in the amendment Act, outside s 32(7).
The Court then characterised s 32(7) as an "express saving" of the kind referred to in the interpretation Act s 37(2), with the result that if the latter provision was applicable nothing in s 32(7) of the amendment Act could be taken to prejudice the operation of s 37 of the interpretation Act in relation to the effect of the repeal.
A question then necessarily arose as to whether or not the amendment Act had, at least impliedly, repealed the interpretation Act s 37(2).
The Court said that had not occurred.
That being the case, and in the words of Gummow, Hayne and Heydon JJ (McHugh J and Kirby J delivering separate judgments to the same effect) the "result (was) that the former provisions in s 93D continued to apply to the pending application by the appellant and that the District Court therefore erred in dismissing the application on the ground that it lacked the necessary power to grant leave".
It is the case that in Dossett the respondent conceded that, given the suffering by the appellant of an earlier injury and the pendency of a leave application, his situation fell within one or more of the interpretation Act s 37(1)(b)(c) or (f).
However, it does not appear from the Court's reasons that any distinction was to be drawn between that situation and the situation as it would have been had no application been made.
Further, counsel for the second defendant was unable to point to any reason why such a distinction ought be drawn.
None comes to mind.
In my view the necessary effect of the finding of the High Court is that the interpretation Act s 37(1) has application in all cases that fall within it.
And a right to make an application to bring proceedings in negligence clearly falls within s 37(1)(c) and (f).
The decision in Dossett is thus applicable and binding on me, and I am required to consider the plaintiff's application for a grant of leave.
2. The effect of the earlier, adverse determination of the application for leave was, counsel for the appellant submitted as described by Fletcher Moulton LJ in Radcliffe v Pacific Steam Navigation Co [1910] 1 KB 685 at 691:
"Whether or not the matter is res judicata, must depend solely upon whether the issue to be decided by the county court judge has already been litigated and decided between the parties … a decision as to the condition of the workman and the nature of his injuries did not constitute res judicata, because it was merely the expression of opinion based on the evidence then procurable, and that it might be corrected at a future time when experience and future developments had increased the materials for arriving at a correct conclusion."
That passage was cited with approval in the judgment of the Court in Waddington v Silver Chain Nursing Association (1998) 20 WAR 269, 277.
As I understood him, counsel for the second defendant conceded that was the appropriate test in relation to any further application for leave under the Act s 93D but submitted that the issue for determination that arose was the same in the present case as it had been on the original application.
In my view, and as the further affidavit sworn by the plaintiff shows, that is not the case.
The plaintiff raised several matters, including the state of his psychiatric health and his ability to work generally, that were additional to the matters before the learned Registrar.
No issue estoppel was therefore made out.
For the above reasons I granted leave to the plaintiff to bring proceedings against the second defendant, on the terms set out in the order.

[2004] WADC 13

4 February 2004