Mokta v Metro Meat International Limited

[2004] WADC 78

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MOKTA -v- METRO MEAT INTERNATIONAL LIMITED [2004] WADC 78

CORAM:   NISBET DCJ

HEARD:   19 MARCH 2004

DELIVERED          :   4 MAY 2004

FILE NO/S:   CIV 16 of 2000

BETWEEN:   JEWITA MOKTA

Plaintiff

AND

METRO MEAT INTERNATIONAL LIMITED (ACN 061 785 475)
Defendant

Catchwords:

Practice and procedure - Application for leave to proceed with action previously stayed - Cross­application to strike out action on ground no remedy available by reason of provisions of Workers' Compensation and Rehabilitation Act 1981 (as amended)

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Interpretation Act 1984

Result:

Stay of action discharged
Action dismissed

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela

Defendant:     Mr P P McCann

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo

Defendant:     D G Price & Co

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

Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428

Dossett v TKJ Nominees Pty Ltd [2001] WASCA 179

Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88

Ousley v R (1997) 148 ALR 510

Parker v St Bartholomews House Inc [2003] WADC 44

Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 151

Turner v Bulletin Newspaper Co Pty Ltd & Ors (1974) 3 ALR 491

Case(s) also cited:

Chanel Ltd v FW Woolworth & Co Ltd [1081] 1 All ER 745

Henderson v WMC Resources Ltd [2004] WADC 13

McNair v Press Offshore Ltd (1997) 17 WAR 191

Newcombe v AME Properties Ltd (1995) 14 WAR 259

Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 28 FLR 195

Turner v Kowloon Holdings Pty Ltd [2003] WASCA 276

United Construction Pty Ltd v Maketic [2003] WASCA 138

Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

Western Metals Zinc NL v Wesfarmers Transport [2003] WASCA 152

1. NISBET DCJ:  On 6 January 2000 the plaintiff issued a writ of summons against the defendant.  The writ was accompanied by a statement of claim.  By her claim the plaintiff alleged that on or about 5 November 1996 she sustained an injury in consequence of the defendant's negligence.  The injury alleged appears to be a species of repetitive strain injury.  Other causes of action were pleaded alleging a breach of a statutory duty and a breach of contract.  On 4 February 2000 the defendant filed a conditional appearance and by summons dated 18 February 2000 applied to strike out the plaintiff's claim "for non‑compliance with the provisions of Workers' Compensation and Rehabilitation Act 1981 (as amended)".  The application was eventually heard by Deputy Registrar Harman on 28 September 2000 and by reasons delivered 1 December 2000 the defendant's application was dismissed.  The defendant appealed from that decision and the appeal came on for hearing before HH Jackson DCJ who determined it by reasons delivered 27 June 2001.  His Honour ordered that the action be stayed to enable the plaintiff to make application for an assessment of her degree of disability in accordance with the then provisions of the Workers' Compensation and Rehabilitation Act 1981 (hereinafter "the Act").  The plaintiff then issued proceedings to determine her entitlement to compensation under the Act and hence obtain an assessment of her degree of disability.  Subsequently the Conciliation and Review Directorate of the Workers' Compensation and Rehabilitation Commission determined that compensation was not payable to the plaintiff by reason of her refusal or, alternatively, failure to attend for medical examination as required by s 64 of the Act.

2. Notwithstanding this history, the plaintiff now maintains that the stay should be lifted thereby enabling her to proceed with her claim.  In so doing she relies upon a particular construction of s 93B(1)(b) of the Act.  The provision is as follows:

   "93B.  Application of this Division

   (1)This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if —

   (a)the disability was caused by the negligence or other tort of the worker's employer; and

   (b)compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22."

3. Section 22 of the Act provides as follows:

   "22.   Serious and wilful misconduct

   If it is proved that the disability of a worker is attributable to his —

   (a)voluntary consumption of alcoholic liquor or of a drug of addiction, or both, which impairs the proper functioning of his faculties;

   (b)failure, without reasonable excuse, proof of which is on him, to use protective equipment, clothing, or accessories provided by his employer for the worker's use; or

   (c)other serious and wilful misconduct,

   any compensation claimed in respect of that disability shall be disallowed unless the disability results in death or serious and permanent disablement."

4. The plaintiff argues that as no compensation has been paid to her because her claim for compensation has been dismissed by reason of her non‑compliance with s 64 of the Act, and because compensation is not and can never be payable to her, because she has had her application dismissed for her failure to comply with the provisions of s 64 of the Act, then she does not come within the Division and hence does not require leave to continue with her action as is required by s 93D(4) of the Act.  In effect the plaintiff argues that she can ignore the Act altogether, alternatively, engage in a token application but refuse to comply with any of the other requirements of the Act and hence deliberately disentitle herself to a determination of her right to compensation under the Act such that none becomes payable, and in consequence she is exempt from the operation of Division 2 of Part IV of the Act.  This construction, urged by counsel for the plaintiff before me, was specifically disavowed by counsel for the plaintiff when this matter was argued before H H Jackson DCJ who noted in his judgment:

   "Once the concessions are made as here by Ms Sorgiovanni [for the plaintiff] as to the width of the concept of compensation being 'payable' and the inability of workers to avoid the constrictions of Division 2 of Part IV by not making a claim for workers' compensation, the need for compliance with those constrictions must, I think, implicitly, if not expressly, give the statutory review mechanisms power to deal with the level of disability and Re Monger; Ex parte Woodford [1999] WASC 273 makes it plain that the action, therefore, should now be stayed for that purpose."

5. Accepting, but without deciding, that that submission is not binding on the plaintiff on the hearing of her application before me, it is a somewhat unusual submission.

6. The only support for the submission which the plaintiff could argue before me was from the maxim expressio unius est exclusio alterius, whereby, the plaintiff submitted, parliament having employed the phrase "or would have been paid or be payable but for section 22" was thereby limiting the class of case to which the division applied in situations where no compensation was payable, to only those situations in which a worker was disentitled to compensation by reason of serious and wilful misconduct as proscribed by s 22.

7. Whilst there have been occasions when the maxim expressio unius est exclusio alterius has been used by the High Court of Australia to assist with statutory interpretation, much more often than not it has been rejected as an aid to construction.  As Gaudron J said in Ousley v R (1997) 148 ALR 510 at 525:

   "However, that rule 'must always be applied with care, for it is not [a rule] of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument.'  Moreover, the nature of the matter specified in [parts of the legislation under review] tell against construing those provisions as revealing an intention that they are the only matters which need be specified."

8. Her Honour was but repeating oft‑stated dicta of the High Court to the same effect:  Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94. There are a host of other authorities expressing similar sentiments and they are conveniently summarised by Hely J in Barratt v Howard (1999) 165 ALR 605 at [45].

9. The plaintiff submitted that to construe the provisions of s 93B(1)(b) otherwise than in accordance with her interpretation of the provision would be to ignore the phrase "or would have been paid or be payable but for section 22."  This submission however disregards the proper construction of the words "or is payable" which the plaintiff conceded before HH Jackson DCJ meant an inchoate liability to pay as opposed to a settled or determined liability ‑ an interpretation of the provision with which O' Sullivan DCJ agreed:  Parker v St Bartholomews House Inc [2003] WADC 44. The plaintiff cannot simply take herself out of the operation of the Act by refusing or failing to have the defendant's liability determined in accordance with its provisions.

10. Once this point is reached all that remains to be determined is what is to become of the action.  Until the High Court ruled that the former provisions of the Act applied in circumstances where no leave had been obtained as required by the (former) s 93D(4) and the cause of action (if any) had arisen before the amendments wrought by Act 34 of 1999, the Workers' Compensation and Rehabilitation Act 1999, proclaimed 5 October 1999, came into effect, it was thought the former provisions only had a continuing application where leave to institute proceedings had been given:  Dossett v TKJ Nominees Pty Ltd [2001] WASCA 179. But the High Court has now explained the true position, namely that s 37(2) of the Interpretation Act 1984 applies to save the former provisions:  Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428. This being so, leave to institute these proceedings was required. It wasn't and hence HH Jackson DCJ had no power to stay the proceedings pending a determination of incapacity and should have either struck them out or stayed them permanently. As this is not a case like Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 151, the choice between permanent stay and striking out here is somewhat academic. His Honour's order, being interlocutory, can be reviewed by the court at any time: Turner v Bulletin Newspaper Co Pty Ltd & Ors (1974) 3 ALR 491 per Jacobs J at 513. As no useful purpose can be served by staying the action permanently, as opposed to striking it out, and the stay previously ordered having been made without power, I will recall the order for the stay, discharge it and strike out the action.