Mokta v Metro Meat International Limited - [2000] WADC 314

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MOKTA -v- METRO MEAT INTERNATIONAL LIMITED [2000] WADC 314

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 28 SEPTEMBER 2000

DELIVERED : 1 DECEMBER 2000

FILE NO/S: CIV 16 of 2000

BETWEEN: JEWITA MOKTA
First Plaintiff
AND
METRO MEAT INTERNATIONAL LIMITED (ACN 061 785 475)
Second Defendant

Catchwords:

Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to dismiss the action - Workers' Compensation and Rehabilitation Act 1981

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Interpretation Act

Result:

Dismissed

Representation:

Counsel:

First Plaintiff : Mr K H M Wong
Second Defendant : Mr D G Price

Solicitors:

First Plaintiff : Friedman Lurie Singh
Second Defendant : D G Price & Co

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

Cikara v The Minister for Works, unreported; DCt of WA; Library No 4920; 21 May 1996
Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998

Case(s) also cited:

Dalgety Australia Ltd & Anor v de Vahl Rubin & Ors, unreported; FCt SCt of WA; Library No 5485; 24 August 1984
Day v William Hill (Park Lane) Ld [1949] 1 KB 632
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125
Hospitals Contribution Fund of Australia Ltd v Hunt (1982) 44 ALR 365
Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175
Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6461; 25 August 1986
Niven v Grant (1903) 29 VLR 102
Packhard v Transport Trading & Agency Company Ltd and Weir (1912) 14 WALR 191
Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150

DEPUTY REGISTRAR HARMAN: This action is for damages for personal injury. The defendant issued a memorandum of conditional appearance and its summons now before the Court for determination seeks to have the action struck out. The basis of the application is expressed as follows:
"The reason for bringing this application is the plaintiff did not obtain leave pursuant to the provisions of section 93D prior to the Act being amended and in the alternative the plaintiff not having complied with the provisions of the Act as amended on 5 October 1999."
The relief sought is discretionary but that discretion should be exercised only where it is clear that the plaintiff has no cause of action. The onus is on the applicant.
It is common ground that the plaintiff did not obtain a grant of leave under s 93D (4) of the Workers' Compensation and Rehabilitation Act 1981 prior to the repeal of that provision on 5 October 1999.
The alternative basis on which the application is put ultimately reduces to a consideration of s 93B(1) of that Act. It is as follows:
"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 payable but for section 22"
Section 22 deals with the prospect of disentitlement in the event of the worker's wilful misconduct. It has no bearing upon this case.
As I understand the defendant's case it seeks to take the benefit of the application of the Division.
For the purposes of s 93B(1)(a) there has been no determination that the disability was caused by the negligence or other tort of the plaintiff's employer. The defendant gives evidence that the plaintiff has issued a writ claiming damages from the defendant for injuries allegedly suffered by the plaintiff in the course of her employment with the defendant. It did not appear to be the case that the plaintiff contested that assertion. However the evidence and the lack of contest do not constitute a finding for the purposes of s 93B(1)(a). It is inappropriate that I make such a finding as the application before me is not amenable to a determination on evidence.
Be that as it may it was the case that the submissions of the parties assumed that s 93B(1)(a) was satisfied.
As to whether s 93B(1)(b) is satisfied, the defendant has provided an evidentiary basis for a relevant determination. That evidence is to the effect that at this stage the plaintiff considers that compensation was not paid and is not payable in respect of her alleged disabilities. Again the plaintiff did not contest that evidence. The evidence and the lack of contest do not amount to a determination for the purposes of s 93B(1)(b). Even if that was not the case, it seems to me that the qualification "at this stage" may be significant. Especially so s 93B(1) is expressed to operate at the time of the awarding of damages. I am not engaged in that exercise. Although some may attack the lack of any more forthright evidence from the plaintiff, the application was voluntarily made and the plaintiff carries no onus.
Be that as it may the submissions of the parties were directed to the prospect that a determination may be made under s 93B(1)(b). It is common ground that the defendant has paid no compensation.
The plaintiff's solicitor gives evidence that although the plaintiff claimed compensation from the defendant that claim was denied. By the defendant's solicitor's letter dated 13 April 2000 it advised that the claim was denied for the following reasons:
1.Late notification of the claim.
2.Breach of section 84I of the Act.
3.The plaintiff not having suffered a personal injury by accident.
As to the third point, the jurisdiction to make any determination resides elsewhere. In any event there is no evidence other than that the defendant relied upon that proposition to deny that it was liable to pay compensation. That would still leave open the prospect that compensation may be paid or be payable in the future. As much as the plaintiff may change her mind so too may the defendant. However the defendant having made this application it may be appropriate to consider that at least for present purposes it ought to be bound by its statement of 13 April 2000.
As to the balance of the points, it is my understanding that the reference to late notification is a reference to the requirement in s 84I that notification of a claim be made within a period of 12 months. In the event of a failure to provide such notification, any relevant claim is expressed to be not maintainable. Section 84I allows for the prospect that either late or insufficient notification may be excused.
The defendant may presently have an interest in seeking to have any such default excused however, s 84I is not amenable to a reading which would give the defendant that opportunity. In the present context I perceive that it would not be in the plaintiff's interests to seek that result. I was informed that the plaintiff had no intention of seeking that result.
In the circumstances, for the purposes of s 93B(1)(b), no compensation could be considered to be payable.
It would appear that the defendant could only rely upon the proposition that if the court were to award damages to the plaintiff it would do so contrary to the intention of the Legislature.
In my opinion the Legislature must have appreciated that in qualifying the application of s 93B(1) beyond par (a), there would be circumstances where a case would satisfy par (a) but not par (b). For the purposes of this application it is no more than a matter of considering whether the intention of the Legislature was to limit the impact of its interference with the freedom to pursue a claim for damages for personal injury to cases where the Act would otherwise provide compensation for the injured worker.
It was the perception of the Full Court of the Supreme Court in Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998 that my interpretation of a similar statutory provision in Cikara v The Minister for Works, unreported; DCt of WA; Library No 4920; 21 May 1996 depended upon a special consideration of the legislation brought to my analysis. Although it is difficult to discern, I imagine that the basis of the criticism was a failure to reflect upon s 18 of the Interpretation Act.

It is as follows:
"In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object."
For myself I consider that my interpretation in Cikara was simply the appropriate conservative approach to interpretation in a context where the freedom of the individual to seek redress for alleged wrongdoing was being impinged upon by the Legislature. It was not as if the Legislature was seeking to constrain some form of mischief; it did not abolish the cause of action.
In this case and at this stage in the action the plaintiff relies on the limited terms of s 93B(1). In my opinion it would be wrong for the court to abrogate the plaintiff's entitlement to commence an action for a recognised cause of action upon an interpretation which had the effect of giving any greater scope to the intention of the Legislature than it had expressed so as to remove rights more generally.