Jabar-Khail v Troon Holdings Pty Ltd - [2004] WADC 108

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JABAR-KHAIL -v- TROON HOLDINGS PTY LTD [2004] WADC 108

CORAM: O'SULLIVAN DCJ

HEARD: 18 FEBRUARY 2004

DELIVERED : 31 MAY 2004

FILE NO/S: CIV 2569 of 2001

BETWEEN: MIR WAIS JABAR-KHAIL
Plaintiff
AND
TROON HOLDINGS PTY LTD
Defendant
WEST TOP ENGINEERING PTY LTD
Third Party

Catchwords:

Workers' compensation - Appeal from decision of a Deputy Registrar Application for leave to bring proceedings - Whether grant of leave open - Workers' Compensation and Rehabilitation Amendment Act 1999

Legislation:

Interpretation Act, s 32(7), s 37(1), s 37(1)(b), s 37(1)(c), s 37(1)(f)

Workers' Compensation & Rehabilitation Act 1981

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
Defendant:     Mr D M McKenna
Third Party                   :     No Appearance

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
Defendant:     Jarman McKenna
Third Party                   :     No appearance

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

Abbott v The Minister for Lands [1895] AC 425
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Hewitt v Benale (2002) 27 WAR 91
Mathieson v Burton (1971) 124 CLR 1
Toolan v Metropolitan (Perth) Passenger Transport Trust (2001 25 WAR 1

Case(s) also cited:

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Baker v Shire of Albany (1994) 14 WAR 46
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Mayne v Mayne Nickless Ltd t/as Wards Express, unreported; FCt SCt of WA; Library No: 960223; 26 April 1996
Pilbara Iron Limited v Bonotto (1994) 11 WAR 348

O'SULLIVAN DCJ: The plaintiff was injured on 26 August 1999 while working on premises in Stott Road, Kewdale.
At that time he was employed by the third party and was working pursuant to a contract between it and the defendant.
A writ claiming damages in respect of the plaintiff's injuries was issued on the 3 October 2001. No leave was obtained pursuant to the provisions of the Workers' Compensation and RehabilitationAct1981 as amended ("the Act") and it is fair to say that that is probably because at that time there was uncertainty in the legal community about the application of the Act to claims of this kind.
However, following Hewitt v Benale (2002) 27 WAR 91 it was made clear by the Full Court that a person such as the defendant is deemed to be an employer under s 175 of the Act and therefore leave was necessary.
On 9 January 2004 an application for leave was filed and on 18 February it was heard and granted by a Deputy Registrar of this Court.
This is an appeal from that decision.
On 5 October 1999 the Act was amended to remove the requirement for leave but to restrict in other ways the plaintiff's right to damages at common law.
Section 32(7) of the amending Act provides:
"7.the amended provisions do not effect 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 of provisions before the assent day,
and the former of provisions continue to apply in relation to those proceedings."
The assent day was 5 October 1999.
For some time after this date it was generally thought that by reason of s 32(7) a worker was unable to have his claim dealt with under the Act as it stood before the amendments unless he had actually commenced proceedings for damages in respect to his injuries or at least obtained leave to do so.
However, in Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428 it was held by the High Court that s 32(7) did not exhaustively deal with the position and that a worker who had lodged his application before 5 October 1999 but had not had it dealt with was also able to have his claim determined under the Act as it formerly stood.
The High Court reached this conclusion having regard to s 37 of the Interpretation Act 1984 which provides in part as follows:
"(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."
In delivering their reasons for judgment in Dossett, Gummow, Hayne and Heydon JJ said at [32]:
"The appellant submits that it follows from the application of the specific provision in s 37(2) of the Interpretation Act that the limited savings provisions in s 32(7) of the 1999 Act do not exhaustively deal with his position. He contends that there is left untouched whatever advantage he otherwise obtains by the operation of s 37(1) of the Interpretation Act. That submission should be accepted."
Dossett is of course distinguishable from the present case in that here no application for leave to commence proceedings had been lodged before 5 October 1999. Further it was expressly conceded that "the situation of (the worker) answered the terms of one or more of pars (b), (c) and (f) of s 37(1) of the Interpretation Act" (ibid, par 35 per Gummow J et al). No such concession is made here.
In the appellant's submission, these distinctions are significant.
Counsel for the appellant also took me to the reasoning of the Full Court in Toolan v Metropolitan (Perth) Passenger Transport Trust (2001 25 WAR 1, and in particular to the judgment of Parker J. He pointed to the distinction to be drawn between a right "accrued" within the meaning of s 37(1)(c) of the Interpretation Act and a mere "power to take advantage of an enactment" such as is referred to in Mathieson v Burton (1971) 124 CLR 1 at 23.
After referring to the judgment of the Privy Council in Abbott v The Minister for Lands [1895] AC 425, Parker J said of Mr Dossett at [62]:
"Having presented his case for leave and obtained a decision of the District Court (albeit adverse) on that case, and by appealing from that decision having acquired a right to have a grant of leave if it had been wrongly refused, the appellant in this case maybe seen to be in a materially different position than, for example, a worker who had merely applied for a grant of leave but had not had that application heard and determined by the District Court when the 1999 amendment came into force on 5 October 1999. In my view, while the issue involves the drawing of fine distinctions, in these circumstances the appellant may be seen to have acted sufficiently to take advantage of his contingent right to an award of damages in accordance with the former provisions, for that to be a right 'created, acquired, accrued, established or exercisable' within the meaning of s 37(1)(c) of the Interpretation Act."
While conceding that in the light of Dossett the example referred to by his Honour in the above passage must now be regarded as wrong, counsel argued that the approach adopted was nevertheless correct. The question, said counsel, is whether a worker had "acted sufficiently to take advantage of his contingent right" so that it could be described as one "created, acquired, accrued, established or exercisable" within the meaning of s 37(1)(c) of the Interpretation Act.
It is true, I think, that there was no expressed disapproval of this approach in Dossett (although the contrary could perhaps be argued – see the last sentence of par 31 of the reasons of Gummow J et al), but it clearly was not the one taken. Thus as McHugh J said at [11]:
"Section 32(7) authorises the awarding of damages where proceedings for damages have been commenced and where leave to issue proceedings have been given but no action for damages has commenced. It has nothing to say about whether the right to apply for leave may continue. Nor does it say anything about the effect and operation of s 37(1) of the Interpretation Act."
At [21] Gummow, Hayne and Heydon JJ said:
"In respect of this injury the common law of tort gave the appellant well established rights. Those rights were not there after to be abrogated by statutory intervention in the absence of clear words or unnecessary implication to that effect."
At [88] Kirby J said:
"When the jurisdiction and power of the independent courts of Australia are invoked by anyone of this country, it requires a clear and valid law to deprive that person with the right to have a decision on that claim. Instead of a clear law the most the respondent could point to was an ambiguous, non exhaustive provision that did not have the effect claimed."
I also note that Kirby J said (at [78]):
"The circumstances disclosed in Toolan reveal the difficulty of applying justly the arbitrary approach postulated by the respondent and endorsed in the present case by another Full Court."
In my opinion, while it is true that there was a concession made in Dossett, there is no reason to think that it was only properly made because the worker had both been injured and had an application for leave pending on the assent day. The "well established rights" which Gummow J et al refer to at [21] of their reasons for judgment included a right of action for damages which had not been abrogated before the 5 October 1999 but only subjected to "legislative inroad"(ibid).
It follows that in my opinion I am required to hold, as I do, that I should entertain this application.

The factual merits

The approach to be taken in dealing with the factual merits of an application such as this is well established (see for example Toolan (supra) per Parker J at [27]).
In the context of this case leave can only be granted if the plaintiff establishes that it is likely that as a result of his disability he will suffer future pecuniary loss at least equal to the prescribed amount.
The relevant prescribed amount is $135,531.
If the plaintiff was working as a boilermaker welder I am satisfied that at the present time he would be capable of earning $650 net per week.
I am further satisfied on all the evidence, including that contained in the report of Dr John Bell dated 15 November 2003 that the plaintiff is not fit to resume his pre‑accident occupation, even on a part-time basis.
Mr Bell is of the view that the plaintiff is nevertheless capable of doing lighter work including that of a storeman, salesperson, dispatch officer, shop assistant in a video store, photographic development laboratory assistant, clerk, service station console operator and courier driver.
The defendant argues that in each of these occupations the plaintiff should be able to earn sufficient to reduce the amount of his future pecuniary loss to a sum less than the prescribed amount. The calculations are set out in an affidavit of Kristy Susan Weston dated 13 February 2004. They show that after allowing for a retained earning capacity in these various occupations the future economic loss suffered by the plaintiff would be between about $40,000 and $131,000 and therefore less than the prescribed amount.
After stating in his report of 20 June 2001 that the plaintiff remained restricted in returning to work as a boilermaker welder Mr Narula, the plaintiff's neurosurgeon stated:
"There are other residual symptoms which make him vulnerable to further injury and in this regard he is best suited to a light work activity with only intermittent moderate work which is not repetitious. He was advised not to bend or lift. He is also advised not to undertake regular twisting activities. It is my opinion that in due time he will be able to find fulltime work with these restrictions in place. He would have a capacity to return to fulltime work. It is also my opinion that he remains 10% impaired in the effective use of his thoracolumbar spine. This is in accordance with the Second Schedule of the Workers' Compensation and Rehabilitation Act. This is likely to remain the case in the foreseeable future."
In a report dated 7 September 2003 Dr Boon Loke, consultant psychiatrist states that in his view the plaintiff "has probably sustained a permanent residual psychiatric disability." Dr Boon Loke states:
"In my opinion, Mr Jabar‑Khail suffered from major depression with psychotic systems. His psychotic symptoms have been in remission but his other depressive systems are only in partial remission. His depressive disorder was probably precipitated by his back pain and associated physical disability and made worse by subsequent deterioration of his defacto relationship and financial situation."
It is now nearly four years since the plaintiff's accident and he has not been able to return to gainful employment. Attempts at rehabilitation into light work have not been successful. He is an immigrant who has lost the capacity to use his chief qualification and in my view he remains at significant risk of being unable to work again on a full time, uninterrupted basis.
In these circumstance I am quite satisfied that the plaintiff has established that he has a real rather than a remote chance of establishing that he has suffered future pecuniary loss in an amount at least equal to the prescribed amount.
In my opinion a grant of leave to bring proceedings is appropriate and the appeal should be dismissed.