McDONNELL v Kalgoorlie Consolidated Gold Mines Pty Ltd
[2004] WADC 215
•4 NOVEMBER 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: McDONNELL -v- KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD [2004] WADC 215
CORAM: CHANEY DCJ
HEARD: 17 SEPTEMBER 2004
DELIVERED : 4 NOVEMBER 2004
FILE NO/S: CIVO 27 of 2004
BETWEEN: PETER GEOFFREY McDONNELL
Plaintiff
AND
KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD
Defendant
Catchwords:
Negligence - Claim against employer - Leave to commence proceedings - Whether retrospective leave available - Whether application for leave constitutes abuse of process
Legislation:
Workers' Compensation and Rehabilitation Act 1981-1996, s 93D
Result:
Summons to strike out originating summons dismissed
Representation:
Counsel:
Plaintiff: Mr I T Blatchford
Defendant: Mr M W Schwikkard
Solicitors:
Plaintiff: S C Nigam & Co
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Duca v Ahern Holdings Pty Ltd [2004] WADC 85
Emanuele v Australian Securities Commission (1977) 188 CLR 114
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hanna‑Pauley v David Jones Ltd (2004) WADC 69
Henderson v Kcut Pty Ltd and Anor [2004] WADC 13
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Mealing v Chand (2003) 57 NSWLR 305
Newcombe v AME Properties Ltd (1995) 14 WAR 259
Pilbara Iron Ltd & Anor v Bonotto (1994) 11 WAR 348
Pountney v Griffiths [1976] AC 314
Re Monger; Ex parte Cross [2004] WASCA 176
Re Sydney Formworks Pty Ltd [1965] NSWR 646
Tyler v Ryad Engineering [2004] WADC 209
Walton v Gardiner (1992-1993) 177 CLR 378
Case(s) also cited:
Dey v Victorian Railways Commissioners (1948) 78 CLR 62
CHANEY DCJ: By an originating summons filed on 24 February 2004, the plaintiff sought leave to commence an action for damages for personal injury against the defendant in relation to an accident which occurred on 26 December 1997. At the time of the accident, the plaintiff was employed by the defendant.
By chambers summons lodged on 29 March 2004, the defendant sought to strike out the originating summons on the grounds that it constitutes an abuse of process. These reasons deal with that application.
Background
It is common ground between the parties that the background to the application was accurately set out in the defendant's outline of submissions which can be summarised in the following terms.
The plaintiff contends that he suffered a disability in the course of his employment with the defendant on or about 26 December 1997.
On 5 October 1999, the Workers' Compensation and Rehabilitation Act 1999 (WA) ("the 1999 Act") received the Royal Assent. The effect of s 32(5) of the 1999 Act was to the repeal s 93D of the Act ("the former s 93D") and replace that section with other provisions (including "the current s 93D") 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.
On 13 December 1999, the plaintiff instituted an application pursuant to the current s 93D of the Act seeking a determination that the relevant level of his disability so as to enable him, if he chose, to commence an action for damages against the defendant independently of the Act. The question of the relevant level of disability was subsequently referred to a review officer for determination in the Conciliation and Review Directorate.
That application was dismissed on a jurisdictional point. A further application was made in June 2003, and that application was ultimately dismissed on 24 March 2004. A subsequent appeal against that dismissal was eventually dismissed on 3 August 2004.
In the meantime, on 4 December 2003, the High Court held in Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428 that the former s 93D continued to apply to Mr Dossett's common law cause of action, since on the Assent Date of the 1999 Act, he had an application pending for leave under the former s 93D(4) and his right to proceed with that application was preserved by s 37(1) of the Interpretation Act.
On 14 October 2003, while the proceedings under the current s 93D were progressing, the plaintiff filed a writ of summons in the District Court seeking damages from the defendant in respect of the disability (District Court Action No. 2292 of 2003).
On 4 February 2004, Macknay DCJ held in Henderson v Kcut Pty Ltd and Anor [2004] WADC 13 that the former s 93D continued to apply in respect of a worker's cause of action even if the worker did not have an application for leave pursuant to the former provision pending on the Assent Date of the 1999 Act. Williams DCJ reached the same conclusion in Hanna‑Pauley v David Jones Ltd (2004) WADC 69. Those decisions have been followed by other judges of this court, including me in Duca v Ahern Holdings Pty Ltd [2004] WADC 85 and Tyler v Ryad Engineering [2004] WADC 209.
On 24 February 2004 the plaintiff filed an originating summons with an affidavit in support of the application seeking leave to commence an action pursuant to the former s 93D of the Act in respect of the disability.
On 22 March 2004, a conditional appearance to the originating summons was entered on behalf of the defendant, which then applied to strike out the originating summons.
By letter dated 8 September 2004, the plaintiff's solicitors served the writ of summons on the defendant.
What can be seen from that chronology is that the six year limitation period for an action founded on tort or contract imposed by s 38(1)(c) of the Limitation Act 1935 expired on 26 December 2003. An affidavit of Fiona Jane Dempster, a legal practitioner acting for the defendant, makes it clear that the defendant would rely upon the limitation defence. It follows that the grant of leave, if it were only capable of acting prospectively, would be pointless since any action commenced pursuant to the leave would be doomed to failure.
The position is, however, that a writ has already issued on 14 October 2003 within the limitation period, albeit without the requisite leave pursuant to the former s 93D of the Act.
The plaintiff's contention is that the requirement for leave is merely procedural, and it is open for the Court to grant leave retrospectively, or nunc pro tunc, so as to enable the plaintiff to proceed with that writ and have his claim for damages ultimately determined in that action.
The issue to be determined on this application
It was also common ground between the parties that proceedings constitute an abuse of process if they can be clearly seen to be foredoomed to fail: Walton v Gardiner(1992-1993) 177 CLR 378 at 393; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 ‑ 130. Although that principle was agreed, its consequences to the way that I should approach this summons were treated differently by the parties. The plaintiff submitted that the issue as to whether retrospective leave might be granted is, on the basis of the authorities referred to in argument, at least arguable. Thus it was said that the originating summons which, when it is heard, will involve ventilating that issue cannot be said to be an abuse of process. The plaintiff's position was that, in order to dispose of the summons before me, as distinct from the originating summons, all that I need to determine is whether it is arguable that retrospective leave is possible, not whether the argument will ultimately succeed.
The defendant, on the other hand, submitted that I should take a broader view of the role and determine the legal question as to whether retrospective leave is available. The question was fully argued before me, and the defendant's position was that, rather than simply determine whether retrospective leave is arguably open, and leave it to another judge on hearing the application for leave itself to determine the question of law, that determination should be made on the present application. In effect (although this is not how the defendant put it) the defendant's position is that I should treat the summons to strike out the originating summons as the hearing of a preliminary issue capable (if determined in the defendant's favour) of determining the originating summons.
It seems to me appropriate that I make a determination as to the question of law raised, and fully argued, on the summons to strike out. It would have been preferable to have the matter argued in the context of the substantive hearing of the originating summons, but the parties have chosen not to take that course. The question as to the availability of retrospective leave obviously needs to be determined at some point in the current proceedings, and the parties having argued the matter, I take the view that there is no sensible reason to, in effect, put it off to another day with the resultant costs of the parties, delay in the proceedings, and consumption of court time.
The relevant statutory provisions
Prior to the amendment to the Workers' Compensation and Rehabilitation Act 1981 which took effect in 1999, s 93C and s 93D of that Act provided:
"93C.Limit of powers of courts
If this Division applies a court is not to award damages to a person contrary to this Division.
93D.No damages unless death or serious disability
(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.
(3)For the purposes of subsection (2)(a), the degree of disability of a worker is to be assessed –
(a) so far as Schedule 2 provides for such a disability, as a percentage equal to the percentage of the prescribed amount that is provided for by that Schedule as read with section 25;
(b)to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;
(c)to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,
or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs.
(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 –
(a)the disability results in the death of the worker or the parties agree that the degree of the worker's disability would, if assessed as prescribed in subsection (3), be 30% or more; or
(b)on a reference under subsection (7) or (8) it is determined that the degree of the worker's disability would, if assessed as prescribed in subsection (3), be 30% or more; or
(c)the court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that it at least equal to the prescribed amount.
…"
The availability of retrospective leave
The defendant's position is that the consequence of the action commenced by writ filed on 14 October 2003 not having been the subject of prior leave, is that it is a nullity, and that its invalidity cannot be cured by retrospective leave.
The unavailability of retrospective leave in the context of s 660 of the Local Government Act 1960 was established by the Full Court of the Supreme Court of Western Australia in Pilbara Iron Ltd & Anor v Bonotto (1994) 11 WAR 348. That section provided that no action is maintainable against a "municipality" unless commenced within 12 months after the cause of action arose and certain notices were provided prior to action. Subsection (2) of s 660 provided that:
(2)Notwithstanding –
(a)that an action has not been commenced within the period prescribed in (a) of subsection (1) of this section; or
(b)the failure to serve any notice as required to be served by subs (1) of this section within the period prescribed by this section for its service,
application may be made at any time before the expiration of six years from the date on which the cause of action arose to a judge for leave to commence action and if the judge considers that the failure –
(c)to commence the action within the prescribed time, or
(d)the failure to serve any notice as required to be served by subsection (1) of this section, within the period prescribed by this section for its service,
was occasioned by mistake or by other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise, by the failure, the judge may if he thinks fit just to do so, grant leave to bring the action, subject to such conditions as the judge thinks it is just to impose."
In Pilbara Iron Ltd v Bonotto, a writ had been issued five an a half years after the cause of action arose. The action was one covered by s 660 of the Local Government Act 1960. More than six years after the cause of action arose, a defence was filed pleading a defence under s 660. A District Court Deputy Registrar found that, as it stood, the action was "not maintainable" but suggested that an amendment to the statement of claim to seek leave under s 660(2) would have the effect of backdating the amendment to the date of the filing of the statement of claim, and thus making it an application for leave within the six year period. That course of action was followed. An appeal to a judge of the District Court against the Deputy Registrar's decision was dismissed. An appeal from that decision to the Full Court was successful. Delivering reasons for decision with which the other members of the court agreed, Anderson J said (at 354):
"On the proper construction of s 660 of the Local Government Act, the right to make an application for leave to commence an action out of time is a right to make an application for leave to commence an action not yet commenced, and the power of the court, conferred by that section, to grant leave, is limited to the granting of leave to bring an action not yet brought. The Court has no power under s 660 to in some way ratify or retrospectively approve an action already begun without leave. The power to grant leave is in its terms a power that can only be exercised prospectively. As a matter of language and logic, it is not possible to 'grant leave to bring' in the sense of commence, an action already commenced."
His Honour went on to say (at 355):
"If the grant of leave to bring the action can operate prospectively only, the application for leave to bring the action must be made before the issue of the writ and the order giving leave must be made before the issue of the writ."
It can be noted that s 93D(4) specifies that proceedings "are not to be commenced" without the leave of the District Court, and thus on their plain reading would seem to suggest that the leave is required prior to commencement in the fashion described by Anderson J in Pilbara Iron Ltd.
Section 93D(4) was considered in Newcombe v AME Properties Ltd (1995) 14 WAR 259. In that case, the plaintiff had commenced an action in the Supreme Court against her employer for personal injuries suffered in the course of employment without having first obtained the leave of the District Court. An Acting Master ordered that the writ be set aside on the ground that the Supreme Court had no jurisdiction to hear and determine the plaintiff's action because of the absence of prior leave from the District Court. The appeal against the Acting Master's decision was dismissed by the Full Court. In the course of his reasons for dismissing the appeal, Malcolm CJ (with whom Rowland and Ipp JJ agreed) described s 93D as legislation which seeks to limit rather than abolish common law rights and that it limits those rights "in language which makes the intention of Parliament unambiguously clear". The Chief Justice said (at 267) that s 93D(4) must be given effect in accordance with its terms. Relying on Pountney v Griffiths [1976] AC 314, the Chief Justice expressed the opinion that the commencement of proceedings without leave, where such leave is required, constitutes a nullity. The court concluded that it was appropriate that the writ be set aside pursuant to O 12 r 6. That rule provides:
"A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by the application under this Rule."
It can be seen from the terms of that rule, that the Full Court considered the writ issued without the prior grant of leave by the District Court to be "invalid".
E M Heenan J in Hewitt v Benale Pty Ltd (2002) 27 WAR 91 at 106 [87] cited Newcombe v AME Properties Ltd was cited as authority for the proposition that the commencement of proceedings without the leave required under s 93D(4), where leave was required, constitutes a nullity and that consequently such proceedings can be summarily dismissed or struck out.
The plaintiff relied upon observations made in Re Monger; Ex parte Cross [2004] WASCA 176, a decision of the Full Court of the Supreme Court comprising five Judges. That case concerned the provisions of Pt IV, Div 2 of the Workers' Compensation and Rehabilitation Act 1991 in its current form. The amendments which were made to that Division which came into effect in October 1999 put restrictions of a different nature on the rights of injured workers to seek common law damages from their employers. The case concerned the issue as to whether the doctrines of waiver or estoppel were available against an employer in relation to a failure by the prospective plaintiff to comply with certain requirements as to the time within which particular steps were to be taken in order to enliven the court's power to award damages. The majority of the court concluded that no question of waiver or estoppel arose on the facts of the case. E M Heenan J was in dissent, although his divergence in his conclusion was based principally on the factual issues in the case. His Honour examined the nature of the statutory provisions and time limits imposed by Division 2 of the Act, and the constraints which those provisions impose upon an award of common law damages. His Honour considered that the provisions were procedural in nature, rather than substantive. He referred to the observations of Kirby J in Dossett v TJK Nominees Pty Ltd that nothing in the Workers' Compensation Act, either before or after the 1999 amendments, abolished the appellant's common law rights and "all that happened was that the enforcement of those rights was made the subject of procedural conditions". He described the provisions of s 93D prior to the amendments as "the procedural gateway through which the appellant had to pass before being entitled to commence proceedings for which damages are sought in the District Court. Leave was essential to the commencement of the proceedings."
E M Heenan J cited McKain v RW Miller & Co(SA) Pty Ltd (1991) 174 CLR 1 per Mason CJ at 18 ‑ 21 as supporting the proposition that:
"The restraints are therefore procedural in nature rather than substantive as they prohibit or qualify the remedy which a court may grant in this State, rather than barring or eliminating the right or liability to damages."
His Honour went on to say:
"One particular effect of these restraints being procedural, rather than substantive, is that where such a procedural restraint is imposed to prevent proceedings being commenced in any court or tribunal without leave being granted, the institution of proceedings without the grant of leave will not be invalid if leave is obtained subsequently on a nunc pro tunc basis."
His Honour gave as an example of that the decision in Emanuele v Australian Securities Commission (1977) 188 CLR 114. That was a case where the High Court, by a majority of three to two, considered that retrospective leave could be granted for an application by the Australian Securities Commission to wind-up a company where s 459P of the Corporations Law provided that an application by the Commission "may only be made with the leave of the Court."
E M Heenan J also referred to Mealing v Chand (2003) 57 NSWLR 305, a case which concerned s 151B(3) of the Workers' Compensation Act 1987 (NSW) which provides:
"A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken."
The statement of claim was filed outside the three year limitation period and without prior leave of the court but an application for an extension of the limitation period was subsequently made. Handley JA, with whom the other members of the Court of Appeal agreed, considered that leave could be granted having retrospective effect. Young CJ in Equity, agreeing with Handley JA, referred to the decisions in Emanuele v Australian Securities Commission and ReSydney Formworks Pty Ltd [1965] NSWR 646 and observed that "words in statutes such as: 'No proceedings shall be commenced unless leave is given' have been consistently considered as still permitting the court to grant leave nunc pro tunc."
The observations by E M Heenan J on the availability of leave nunc pro tunc were adopted by Malcolm CJ, although the Chief Justice reached a different decision as to waiver on the facts of the case – see [70] [75‑77].
As observed above, E M Heenan J based his observation that leave could be granted nunc pro tunc on the proposition that the legislative restraints found in Pt IV, Div 2 of the Act were procedural rather than substantive in part on the observations of Mason CJ in McKain v RW Miller & Co (SA) Pty Ltd. The pages referred to from that decision comprise a discussion of the traditional common law approach to the issue of the distinction between substance and procedure. Mason CJ comprised part of the minority in McKain expressing the view not entirely consistent with the traditional approach that "the essence of what is procedural may be found in those rules which are directed to governing or regulating the mode or conduct of court proceedings." (At 26 ‑ 27). His Honour reached the view that the limitation period found in s 82(2) of the Workers' Compensation Act 1971 (SA) was substantive and not procedural.
In John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, a case concerning choice at law rules, in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, the court said that:
"Matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure."
Their Honours adopted the formulation put forward by Mason CJ in McKain (at 543 ‑ 544) [99]. Kirby J in the same case also concluded that s 151G of the Workers' Compensation Act 1987 (NSW) which placed limitations on the amount of damages to be awarded, is "clearly part of the substantive law of the State of New South Wales." Callinan J also found that the provisions of the New South Wales Act limiting the damages recoverable were matters of substance and not procedure. At 574 [192] his Honour said:
"In my opinion what should be regarded as procedural are the laws and regulations which are reasonable and necessary, in the lex fori for the conduct of the action only; that is to say the laws and rules relating to procedures such as the initiation, preparation, and the prosecution of the case, the recovery processes following any judgment and the rules of evidence."
And at [193] he said:
"In any realistic and practical sense the application of a statute of limitations will have the most profound of impacts upon the rights of the parties. With almost equal force the same may be said of provisions limiting either heads of damage or measures of damages, particularly in tort cases."
Conclusion
The foregoing analysis supports the proposition that the writ issued on 14 October 2003 was a nullity and liable to be set aside on the basis of its invalidity.
The question becomes; can the writ be given retrospective life by a grant of leave made on an application made four months after the writ was issued? The decisions in Pilbara Iron Ltd & Anor v Bonotto, Newcombe v AME Properties Ltd and Hewitt v Benale Pty Ltd suggest, but do not determine, that the answer is no. The observations of E M Heenan J and Malcolm CJ in Re Monger; Ex parte Cross, and the cases his Honour referred to, namely Emanuelle v Australian Securities Commission and Mealing v Chand suggest the answer is yes. The developments of the distinction between substance and procedure in the choice of law context seen in John Pfeiffer Pty Ltd v Rogerson tend to suggest that courts should be more ready these days to construe provisions like those in s 93D (prior to its amendment) as substantive. On the other hand, Kirby J's comment in Dossett suggests that that approach does not extend to the provisions of Pt IV Div 2, at least outside the choice of law context.
In this case, the grant of retrospective leave would have the effect of defeating the operation of the six year limitation imposed by s 38(1)(c) of the Limitations Act 1935. When that period expired on 26 December 2003, no valid action had been commenced. The putative defendant then had an accrued right to plead a defence of limitation to any action subsequently brought. An effective grant of retrospective leave would deprive it of that right. That, however, is not an issue going to power to grant retrospective leave, but rather to the discretion to do so. It is not necessary for me to decide on this application, how the application for leave may ultimately be resolved.
My analysis leads me to the view that retrospective leave is, at least arguably, available. The provisions of Pt IV, Div 2 have been described by Kirby J in Dossett as a "procedural gateway", to the exercise of rights to common law damages. Although the former s 93C and s 93D have the effect of depriving some injured workers of the substantive rights to damages (if they are unable to satisfy the statutory criteria), s 93D(4) is a provision that, to use the words of Callinan J in John Pfeiffer Pty Ltd v Rogerson, concerns "rules relating to procedures such as the initiation … of the case". While the writ lodged in October 2003 is a nullity liable to be struck out, it could be rendered effective by a grant of retrospective leave. The statements made by E M Heenan J and Malcolm CJ in Re Monger, Ex parte Cross, are pronouncements precisely on the point. Those pronouncements are in turn based, at least in part, on observations of the High Court in Dossett. Notwithstanding that the comments were obiter, they were supported by other authority, and it is appropriate that I follow them.
The application for leave is not before me to determine. The question for me is whether the originating summons constitutes an abuse of process. In my view it cannot be said to be doomed to failure.
The application to strike out the originating summons should be dismissed.
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