Martin v City of Perth - [2001] WADC 183

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MARTIN -v- CITY OF PERTH [2001] WADC 183

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 15 JUNE 2001

DELIVERED : 3 AUGUST 2001

FILE NO/S: CIV 2413 of 2000

BETWEEN: PATRICIA MARTIN
Plaintiff
AND
CITY OF PERTH
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike out statement of claim and dismiss action - Order 20 r 19 - Workers' Compensation and Rehabilitation Act 1981, s 64 and s 93E

Legislation:

Rules of the Supreme Court of Western Australia

Workers' Compensation and Rehabilitation Act 1981

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr B S Spinks
Defendant: Mr T Lampropoulos

Solicitors:

Plaintiff: Chapmans
Defendant: Srdarov Richards Burton

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

Lend Lease Employer Systems v Lydon; unreported; FCt SCt of WA; Library No 980088; 27 February 1998
Thomas v Arimco Mining Pty Ltd Ltd [2000] WADC 150
Walsh v Commonwealth (1998) 155 ALR 182

Case(s) also cited:

Cross v Boral Ltd, unreported; Compensation Magistrates Court of WA; Library No 1106; 24 November 2000
March v E & M H Stramare (1991) 171 CLR 506
Mokta v Metro Meat International Limited [2000] WADC 314
QBE Insurance Limited v Multoni Corporation Pty Ltd (2000) 22 WAR 148
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131
Wilson v Wilson Tile Works Pty Ltd (1960) 104 CLR 328

DEPUTY REGISTRAR HARMAN: By the action the plaintiff claims damages for loss arising as a result of personal injuries allegedly sustained as a consequence of the negligence of the defendant.
For the purposes of the application presently before the Court it was common ground that at the relevant time the defendant was the plaintiff's employer. By that application the defendant seeks to strike out the plaintiff's pleading and dismiss the action on the grounds that it discloses no reasonable or maintainable cause of action, that it is frivolous or vexatious and that it may prejudice, embarrass or delay the fair trial of the action or is otherwise an abuse of the process of the Court. In the alternative, the applicant seeks to have the action stayed pending dissolution of the constraints imposed by s 93E(3) of the Workers' Compensation and Rehabilitation Act 1981.
The onus is on the applicant.
Section 93E(3) of the Act founds each part of the application. It is in the following terms:
"Damages can only be awarded if: -
(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is recorded in accordance with the regulations."
The evidence in support of the application discloses that on or about 31 March 2000 the plaintiff lodged an application to the Directorate of Conciliation and Review seeking a determination under s 93E(3) and that to date there has been no determination of that application.
In Thomas v Arimco Mining Pty Ltd Ltd [2000] WADC 150 the Court considered a similar application in similar circumstances and found that upon its proper construction, s 93E(3) did not prohibit the commencement of an action for damages, only the awarding of damages in the action.
In Lend Lease Employer Systems v Lydon; unreported; FCt SCt of WA; Library No 980088; 27 February 1998, the Full Court of the Supreme Court considered that for the purposes of interpreting the now repealed s 93D(4) of the Workers’ Compensation and Rehabilitation Act 1981 the process of awarding damages embraced the process of determining the extent of loss. Whatever may have been the reasoning behind that determination, notwithstanding that determination I am confident that there are sufficient grounds to distinguish the process of awarding damages from that of commencing an action. The fact that the actor in each instance is a different person and that the events occur at different times are significant.
My understanding of the defendant’s case is that s 93E(3) reveals the intention of the legislature to protect a class of defendants and that in order to reflect that intention the court should extend the protection accorded to the need for that class of defendants to engage in proceedings at all. One difficulty with that proposition is that it extends the prohibition in time. If one were to seek to discern legislative intention it would be appropriate to consider that the legislature may not have had any difficulty with the prospect that an injured worker could pursue both an application and a remedy at the same time. That prospect would bring into consideration factors such as the effluxion of time prior to any relevant determination and income support during that time for injured workers. In light of that alternative prospect I would suggest not only would it be impossible to make a determination in favour of the applicant but that the legislature would not expect the Court to embark upon the task. In determining the application I reiterate that the onus is on the applicant and that in the context of an application where the applicant seeks to dismiss the action it is not lightly discharged. I also consider that the Court ought not to lose sight of the fact that by the provision the legislature has accorded some degree of protection to wrongdoers as a class of persons. At the time of considering whether it may award of damages against any member of that class the Court will have already determined the allegations of material fact against the defendant. I understand that others may see that observation as controversial. In my opinion it simply reveals part of the context within which the provision operates and which should determine that the Court follows a conservative approach to interpretation. I would add that I consider that the legislature would expect that the Court would adopt that approach.
Ultimately one would come to consider why it ought to be the case that the prohibition expressed is extended at all. The plaintiff alleges loss as a consequence of the negligence of the defendant and in the action seeks damages for that loss. It is appropriate to consider that but for the interpretation for which the defendant contends, the action of the plaintiff in commencing the action was otherwise lawful. There are few more fundamental rights than that of access to the courts. The means by which the legislature accorded immunity to the defendant was to prohibit the last step taken by the Court in the process of litigation. It chose that mechanism. Prior to the amendment of the Act by which s 93E(3) was introduced the mechanism of prohibition was expressed in s 93D(4) that was in the following terms:
"Proceedings in which damages are sought are not to be commenced without the leave of the District Court."
In my view it is clear that the legislature appreciates that there is a distinction between commencing proceedings for damages and the act of awarding damages.
Furthermore, it is appropriate to consider that the significant feature of s 93E(3) is the existence of a determination at the relevant time rather than the identity of the person making that determination. There is nothing to preclude the prospect that in the event of the plaintiff's application not having been dealt with prior to the Judge considering whether she was entitled to damages, that the Judge would make the relevant determination for the purposes of s 93E(3). Support for that prospect is found in Walsh v Commonwealth (1998) 155 ALR 182 at p 188 as follows:
"There is nothing unusual in a statute conferring a conditional right to institute an action, where the court deciding the action must determine if the conditions were fulfilled. And the idea of a court deciding what another body, judicial or administrative, may have done in a particular situation is a common occurrence."
Insofar as the defendant relies upon s 64 of the Act, its evidence is that it has required the plaintiff to be examined by a medical practitioner pursuant to s 64 and that the plaintiff has failed to meet that requirement.
Section 64 is in the following terms:
"(1)Where a worker has given notice of a disability he shall, if so required by the employer, submit himself for examination by a medical practitioner provided and paid by the employer, and, if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to compensation, and to take or prosecute any proceeding under this Act shall be suspended until such an examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so."
There are a number of issues that arise for consideration as a result of the defendant seeking to invoke the benefit accorded by that provision.
Although on the evidence the defendant sought to rely upon that provision, there is nothing to indicate that the employer would pay for the examination. Of course, I could infer that that would be the case as the defendant expressly sought to invoke the statutory provision had issued the requirement and had made the arrangements. However in a context where the applicant seeks to dismiss the action, where presumably the defendant had evidence to give in relation to the issue and has failed to bring it and where the onus is on the applicant, in my opinion it is not appropriate that the Court be drawing any inference in favour of the applicant at all.
The next issue is whether the plaintiff's conduct to date amounts to a refusal. I note that the evidence is that the appointment for the plaintiff's examination was changed from time to time and that she did not attend the last rescheduled appointment on 21 January 2001. There is nothing further which would indicate that the plaintiff maintains her refusal to submit herself for examination. The application was lodged on 24 April 2001. I may draw the inference that the failure of the plaintiff to keep the last re-scheduled appointment constitutes a refusal, but whether in the context of the application I ought to do so is another matter. I appreciate that for the defendant's purposes it has put the plaintiff on notice that it considers that the plaintiff has failed to comply with the provisions of s 64, but its determination takes the issue no further.
The next consideration is as to whether the action is comprehended by the term "any proceeding under this Act". I accept that the defendant's submission is that in order to give some overall consistency to the scheme of the Act it is appropriate to consider that the action constitutes a proceeding under the Act. Further, as a matter of logic it ought not to be open to a worker who has or at least who will be required to utilise the Act to resile from the mechanisms of the Act. Whatever the analysis ultimately the Court is called upon to determine whether the plaintiff ought to be constrained from conducting herself in what is otherwise a lawful activity.
There can be no doubt that the legislature knows the difference between proceedings for statutory entitlements and proceedings for relief at common law. The only proceedings available under the Act are for statutory entitlements. Those entitlements do not include the right to institute proceedings for damages for loss. If the legislature intended that s 64 had any impact upon such an action then it is more appropriate for a court to consider that the legislature has failed to adequately express itself than it is for a court to proscribe an otherwise lawful act.
As to the prospect that the Court would order that the action be stayed the defendant sought to rely upon the following passage from Thomas v Arimco Mining Pty Ltd:
"This is not to say that in an appropriate case a court would not order a stay of proceedings thus instituted until the provisions of s 93E(3) had been complied with on the basis that if it was to permit the common law action to proceed it would run up against the court's rules and practice directions which are intended to promote a timely disposition of the matters before it, such as then would result in unnecessary wasted effort and expense. It would all be a matter of balance. Some of the questions which could arise would be those that have often been dealt with when courts consider whether or not their process is being abused and indeed the second defendant here argued as a second limb to its argument that to permit this action to go forward in the circumstances as they presently exist would be an abuse of the court's process. There may be occasions when that will be the case. However as the argument was not expressly addressed in the submissions filed on behalf of the second defendant nor in the argument of the parties except as to the discussion of an appropriate remedy in proper circumstances, I am not in a position to decide whether I should grant a stay or not. I do not know for example the state of the proceedings in the Conciliation and Review Directorate, I do not know the state of the plaintiff's medical condition and how soon it is likely to be resolved, I have no idea how he categorises his disability and the like."
It is fair to say that whatever the defendant seeks to make of the content of that passage, I am in no better position to judge the plaintiff's case which presently stands adjourned before the Directorate.
Comments in the passage would suggest that the interests of the Court have some priority over the interests of the parties. I have some considerable difficulty with that proposition. There is no principle that supports case management. It is simply a strategy promoted by the court. That brings me to the second point. It ought to be of some considerable concern that the Court may promote its strategy over the interests of parties. There is scope to discern that the court becomes prosecutor and judge in its own interest. The significant consideration is that any interest that the Court may have in promoting case management is utterly insignificant compared with the interests of the plaintiff. The proposition that case management could justify a stay is surprising.
The passage from Walsh v Commonwealth to which I have referred recognised that the function of the Court was to resolve intractable disputes. It properly takes a robust approach to distractions. In my opinion properly so. And ultimately it comes down to this point: either a cause of action is constituted by the material allegations with which we are all familiar, or it is not. If it seriously suggested that some strategy or practice adopted by the Court as an aid to administration or efficiency, ought to be interposed between the plaintiff and any remedy to which he may be entitled in relation to any cause of action, in my opinion there has been a failure to grasp the reason for the existence of courts. If the Court is to sideline itself it has to ask which other institution is available to parties to resolve intractable disputes in an orderly manner.
In my opinion no part of the application has met the standard by which it is properly judged.