McLoughlin v Randstad Pty Ltd

[2020] FCCA 1893

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCLOUGHLIN v RANDSTAD PTY LTD & ORS [2020] FCCA 1893

Catchwords:
PRACTICE & PROCEDURE – underlying content of paragraph 68 of the amended response is struck out.

Legislation:

Australian Constitution, s 109

Fair Work Act 2009 (Cth), s 566

Workers’ Compensation Act 1987 (NSW), s 151A

Applicant: BEVERLY MCLOUGHLIN

First Respondent: RANDSTAD PTY LTD ABN 28 080 275 378

Second Respondent: PAUL STEWART

Third Respondent: BROOKE O'KEEFE

Fourth Respondent: NICK PESCH

File Number: SYG 2985 of 2018

Judgment of: Judge Street

Hearing date: 10 July 2020

Date of Last Submission: 10 July 2020

Delivered at: Sydney

Delivered on: 10 July 2020

REPRESENTATION

Counsel for the Applicant: Mr G Fredericks

Solicitors for the Applicant: Danny King Legal

Counsel for the Respondent: Mr M Seck

Solicitors for the Respondent: Holding Redlich

ORDERS

1. The underlying content of paragraph 68 of the amended response is struck out.

Date of order: 10 July 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2985 of 2018

BEVERLY MCLOUGHLIN

Applicant

And

RANDSTAD PTY LTD

First Respondent

PAUL STEWART

Second Respondent

BROOKE O'KEEFE

Third Respondent

NICK PESCH

Fourth Respondent

REASONS FOR JUDGMENT

1. These are proceedings that were commenced on 24 October 2018 under the Fair Work Act 2009 (Cth) (“the Act”) and pursuant to the Court’s jurisdiction under s 566 of the Act.

2. The respondents filed an amended response which, in paragraph 68, relevantly pleaded as follows:

   68. The Respondents deny paragraph 63 and say:

   (a) the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) and the Workers’ Compensation Act 1987 (NSW) (WC Act) establish an exhaustive scheme in relation to the compensation, benefits and obligations owed to employees injured during or in the course of their employment;

   (b) the WC Act and the WIM Act operate together and are to be treated as a single system (s 2AWC Act and s 60(2) WIM Act);

   (c) The WIM Act also establishes a comprehensive regime regulating claims for “work injury damages”. It sets out preconditions for when, and limits the circumstances in which, a common law claim for damages can be made in respect of a “work injury”: WIM Act, ss 150B – 151N;

   (d) Under s 79 of the Judiciary Act 1903 (Cth), the WIM Act and the WC Act are binding on the Federal Circuit Court in exercising federal jurisdiction in respect of claims made under the FW Act;

   (e) the Applicant’s claim seeks to recover damages from the First Respondent, as her employer in respect of an alleged injury to her caused by the breach of its statutory duties under ss 340(1) and 351(1) of the FW Act, and is therefore a claim for “work injury damages” within the meaning of s 250(1) of the WIM Act;

   (f) In order to commence a valid “work injury damages” claim, the WIM Act and WC Act establish a number of procedural pre-conditions which must be first met including relevantly that:

   (i) the worker has to give notice of injury: s 151C WC Act;

   (ii) In the absence of the employer accepting the worker’s degree of impairment, the plaintiff must provide a medical assessment certificate from an approved medical specialist that her degree of permanent impairment is at least 15 per cent: s 314 WIM Act;

   (iii) the worker must serve a pre-filing statement setting out the particulars of the claim and the evidence that she will rely on to establish or support the claim (s 315 WIM Act) and give the defendant an opportunity to respond to the pre-filing statement (s 316(2) WIM Act); and

   (iv) the matter must be referred to mediation before court proceedings can be commenced for work injury damages: s 318A WIM Act.

   (g) The Applicant has not satisfied the preconditions set out in sub-paragraph 68(f) and therefore is precluded from claiming work injury damages.

3. There was a reply put on by the applicant identifying that if there was any defence within the statutory provisions it would be inconsistent with s 109 of the Constitution and not capable of application.

4. The Court does not regard there as being any real constitutional question that arises in the context of this case. The paragraphs pleaded do not give rise to any defence in respect of the claim brought by the applicant.

5. It is common ground that there may be consequences from the pleading by the applicant of the content of paragraph 63 in relation to s 151A of the Workers’ Compensation Act 1987 (NSW) insofar as the applicant is successful. It may also be that there are other consequences from the bringing of the proceedings in relation to the workers’ compensation rights. Be that as it may, it is also apparent that whilst the applicant has been in receipt of workers’ compensation, that workers’ compensation would have to be taken into account or repaid if the applicant is successful in relation to the recovery of past economic loss so far as concerns the respondent employer.

6. Mr Seck of counsel on behalf of the respondents seeks to suggest that the procedural requirements under the workers’ compensation legislation concerning notification procedures for claims under that legislation should be given application to the proceedings in relation to this claim brought under the Act. That is not a reasonably arguable proposition. It has no reasonable prospect of success.

7. The Court is satisfied that it is an appropriate matter in the circumstances of this case in which the Court should exercise its power at this stage to strike out the whole of the underlined content of paragraph 68 of the amended response. Accordingly, the Court makes the following order.

I certify that the preceding seven (7) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 July 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 19 February 2021