Musgrove v Minister for Transport
[2000] WASCA 232
•28 AUGUST 2000
MUSGROVE -v- MINISTER FOR TRANSPORT [2000] WASCA 232
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 232 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:103/1999 | 20 MARCH 2000 | |
| Coram: | KENNEDY J IPP J WALLWORK J | 28/08/00 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | GRAHAM VICTOR MUSGROVE MINISTER FOR TRANSPORT |
Catchwords: | Statutes Interpretation Workers' compensation Limitation on awards of common law damages Amendment to Act Amendment not affecting actions for damages in proceedings commenced before the assent day or for the commencement of which the District Court had given leave under the former provisions before the assent day Former provisions applying where District Court decision refusing leave reversed on appeal by the Full Court subsequent to the assent day Workers' compensation Leave to commence proceedings for damages Workers' likely financial loss more than prescribed amount |
Legislation: | Interpretation Act 1984, s 37 Workers Compensation and Rehabilitation Amendment Act 1999, s 32(7) |
Case References: | Borthwick v Elderslie Steamship Co (No. 2) [1905] 2 KB 516 Fisher v Hebburn Ltd (1960) 105 CLR 188 Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379 Maxwell v Murphy (1957) 96 CLR 261 Nicol v Allyacht Spars Pty Ltd (1988) 165 CLR 306 Re Monger; Ex parte Ivey [1999] WASC 250 Roe v Durrant, unreported; DCt of WA; Library No D970279; 12 September 1997 Samson v Industrial Progress Corporation Ltd, unreported; FCt of WA; Library No 970058; 21 February 1997 Sgro v New Cement Company Pty Ltd, unreported; DCt of WA; Library No 4564; 3 August 1995 Wright v Shire of Albany, unreported; FCt SCt of WA; Library No 930434; 5 August 1993 Ainsworth v "D" (A Child) (1992) 7 WAR 102 Baker v Shire of Albany (1994) 14 WAR 46 Bestobell Overseas Ltd v Carden [1988] VR 891 Bingham v England (1996) 17 WAR 226 Clarke v Bailey (1993) 30 NSWLR 556 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Dixon v Royal Insurance Aust Ltd (1991) 105 FLR 129 Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Emanuele v Australian Securities Commission (1997) 188 CLR 114 Esber v The Commonwealth (1992) 174 CLR 430 Kin Kin Resorts Pty Ltd v Water Authority of WA [1990] WAR 48 National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400 Nelson v Trevlyn Pty Ltd, unreported; FCt SCt of WA; Library No 970680; 8 December 1977 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348 Rodway v The Queen (1990) 169 CLR 515 Templeton v Hamersley Iron Pty Ltd [2000] WADC 29 Wang Computers Pty Ltd v Westpac Banking Corporation [1986] WAR 192 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MUSGROVE -v- MINISTER FOR TRANSPORT [2000] WASCA 232 CORAM : KENNEDY J
- IPP J
WALLWORK J
- Appellant (Plaintiff)
AND
MINISTER FOR TRANSPORT
Respondent (Defendant)
Catchwords:
Statutes - Interpretation - Workers' compensation - Limitation on awards of common law damages - Amendment to Act - Amendment not affecting actions for damages in proceedings commenced before the assent day or for the commencement of which the District Court had given leave under the former provisions before the assent day - Former provisions applying where District Court decision refusing leave reversed on appeal by the Full Court subsequent to the assent day
Workers' compensation - Leave to commence proceedings for damages - Workers' likely financial loss more than prescribed amount
(Page 2)
Legislation:
Interpretation Act 1984, s 37
Workers Compensation and Rehabilitation Amendment Act 1999, s 32(7)
Result:
Appeal allowed
Representation:
Counsel:
Appellant (Plaintiff) : Mr K G Robson
Respondent (Defendant) : Mr G R Hancy
Solicitors:
Appellant (Plaintiff) : Trewin Norman & Co
Respondent (Defendant) : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Borthwick v Elderslie Steamship Co (No 2) [1905] 2 KB 516
Fisher v Hebburn Ltd (1960) 105 CLR 188
Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379
Maxwell v Murphy (1957) 96 CLR 261
Nicol v Allyacht Spars Pty Ltd (1988) 165 CLR 306
Re Monger; Ex parte Ivey [1999] WASC 250
Roe v Durrant, unreported; DCt of WA; Library No D970279; 12 September 1997
Samson v Industrial Progress Corporation Ltd, unreported; FCt of WA; Library No 970058; 21 February 1997
Sgro v New Cement Company Pty Ltd, unreported; DCt of WA; Library No 4564; 3 August 1995
Wright v Shire of Albany, unreported; FCt SCt of WA; Library No 930434; 5 August 1993
(Page 3)
Case(s) also cited:
Ainsworth v "D" (A Child) (1992) 7 WAR 102
Baker v Shire of Albany (1994) 14 WAR 46
Bestobell Overseas Ltd v Carden [1988] VR 891
Bingham v England (1996) 17 WAR 226
Clarke v Bailey (1993) 30 NSWLR 556
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Dixon v Royal Insurance Aust Ltd (1991) 105 FLR 129
Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Emanuele v Australian Securities Commission (1997) 188 CLR 114
Esber v The Commonwealth (1992) 174 CLR 430
Kin Kin Resorts Pty Ltd v Water Authority of WA [1990] WAR 48
National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400
Nelson v Trevlyn Pty Ltd, unreported; FCt SCt of WA; Library No 970680; 8 December 1977
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685
Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348
Rodway v The Queen (1990) 169 CLR 515
Templeton v Hamersley Iron Pty Ltd [2000] WADC 29
Wang Computers Pty Ltd v Westpac Banking Corporation [1986] WAR 192
(Page 4)
1 KENNEDY J: The facts in this appeal are set out in the reasons to be published by Wallwork J.
2 The Workers' Compensation and Rehabilitation Amendment Act 1999 (No 34 of 1999) (the Amendment Act), which was assented to on 5 October 1999, imposed new constraints on awards of common law damages to injured workers. The short point in this case concerns the proper construction of s 32(7) of the Act. That subsection provides as follows:
"(7) The amended provisions do not affect the awarding of damages in proceedings -
(a) commenced before the assent day; or
(b) for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
3 The particular issue is whether the Amendment Act, or the Workers' Compensation and Rehabilitation Act 1981, as amended by the Amendment Act, subject to the exceptions to be found in s 32(7), manifests an intention that it should apply in respect of an injury caused before the Amendment Act came into operation - see Mason J in Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379, at 402.
4 In Maxwell v Murphy (1957) 96 CLR 261, Dixon CJ, at 267, said:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."
5 In Fisher v Hebburn Ltd (1960) 105 CLR 188, at 194, Fullagar J said:
"There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal
(Page 5)
- consequences to facts or events which occurred before its commencement. The rule has been frequently applied to amending statutes relating to workers' compensation, and it has often been held that such amendments apply only in respect of "accidents" or "injuries" occurring after their coming into force: the cases of Moakes v Blackwell Colliery Co Ltd [1925] 2 KB 64 and Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647 are familiar examples. But there is no rule of law that such statutes must be so construed, and it would not be true to say that a retrospective effect can only be avoided by confining the operation of such a statute to subsequently occurring "accidents" or "injuries". It may truly be said to operate prospectively only, although its prospect begins, so to speak, with some other event than accident or injury."
6 Those passages were referred to with approval in the decision of the High Court in Geraldton Building Co Pty Ltd v May (supra) which, coincidentally, itself concerned an amendment to the Workers' Compensation Act 1912 (WA). In his judgment, at 387, Barwick CJ indicated that "in construing the Act, regard should be had to the consequences of any particular construction and the legislature credited with the intention of doing justice to both the affected parties". The amending Act in issue in the Geraldton Building Co Pty Ltd case contained no transitional provision. The Amendment Act with which we are concerned, however, expressly provides that the amending provision does not affect the awarding of damages in proceedings for the commencement of which the District Court has given leave under the former provisions prior to the assent day. Although I accept that a judgment of this Court overturning a decision of the District Court refusing leave to bring an action will result in an order of the District Court granting leave within the terms of s 32(7) of the Amendment Act, in my view, it cannot be said that the decision of the Full Court operates retrospectively so that leave is deemed to have been granted by the District Court on the date when it in fact refused leave. It may well be claimed that this does not do justice to both the affected parties, but it is, in my view, the result of the legislation. The relevant leave not having been granted prior to the date of assent, it follows, in my opinion, that the "amended provisions" do "affect the award of damages in [the] proceedings".
7 It does not appear to me that s 37 of the Interpretation Act 1984 can assist the appellant for the reason that "the contrary intention" appears in s 32(7) of the Amendment Act.
(Page 6)
8 In the circumstances, I would dismiss the appeal.
9 IPP J: I have had the benefit of reading the reasons to be published by Wallwork J. I agree generally with those reasons save that I wish to express my own reasons for concluding that s 32(7) of the Workers Compensation and Rehabilitation Amendment Act 1999 (Act No. 34 of 1999), which amended the Workers Compensation and Rehabilitation Act 1981, does not preclude the appellant from proceeding with his action.
10 The appellant unsuccessfully sought leave in the District Court under s 93D(4) of the Workers Compensation and Rehabilitation Act, prior to its amendment by Act No. 34 of 1999, to commence proceedings for damages for personal injuries. Under that section, the District Court was empowered to give leave to commence proceedings upon it determining, amongst other things, "that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount". The learned District Court Judge held, wrongly, in my view (for the reasons set out by Wallwork J), that the appellant had not satisfied her that he was likely to have future pecuniary loss of the requisite amount.
11 The procedures established under s 93D were repealed by the amending provisions of s 32 of Act No. 34 of 1999. Under the new regime established by s 93E (as inserted in the Workers Compensation and Rehabilitation Act by Act No. 34 of 1999), the District Court no longer has power to grant leave. An employee must now establish, as a precondition of the right to claim damages, that he has a degree of permanent disability that is not less than 16 per cent. Section 32(7) of Act No. 34 of 1999 provides, however:
"The amended provisions do not affect the awarding of damages in proceedings –
(a) commenced before the assent day; or
(b) for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
- The implication is that the "amended provisions" do affect the awarding of damages in proceedings commenced after the assent day and for the
(Page 7)
- commencement of which the District Court did not give leave under the former provisions before the assent day.
12 Counsel for the respondent submitted that any order made by this Court varying the order of the District Court would remain an order of this Court and should not be construed as being an order by the District Court giving leave under the former provisions before the assent day. This argument was based on the proposition that any variation of the order of the District Court by this Court would be an order made on the date on which it was given, and could not be regarded as being backdated in any respect. Therefore, it would not result in an order by the District Court giving leave "under the former provisions before the assent day". I accept the validity of this submission: see Borthwick v Elderslie Steamship Co (No 2) [1905] 2 KB 516 at 519 and Nicol v Allyacht Spars Pty Ltd (1988) 165 CLR 306.
13 Counsel for the respondent proceeded to argue that an order of this Court, varying the decision of the learned District Court Judge and purporting to grant leave under the repealed s 93D, would have no effect as such an order was made after the assent day. It was submitted that s 32(7) precludes the awarding of damages in proceedings commenced after the assent day and, as a matter of fact, the District Court did not give leave for the commencement of proceedings under the former provisions before the assent day.
14 Counsel rightly accepted that on the construction so advanced, an error on the part of the District Court Judge - in regard to an application for leave timeously made - might result in a claimant losing his or her right to claim damages. On this basis, the amending statute would deprive an appellant of the right to appeal against an erroneous decision of the District Court: an unfair consequence indeed. In my view, if the Act is to be so construed, the intention of Parliament to that effect would have to be very clear.
15 It is noteworthy that s 32(7) (or any part of the amending Act) does not expressly exclude appeals to this Court from any decision of the District Court giving or refusing leave under s 32(7)(b). Section 79(1) of the District Court of Western Australia Act 1969 provides:
"A party to an action or matter who is dissatisfied with –
(a) a final judgment, may appeal from that judgment to the Full Court constituted under the Supreme Court Act 1935;
(Page 8)
- (b) a judgment that is not a final judgment … may by leave of the Supreme Court or a Judge thereof, appeal to such Full Court,
- … "
16 By providing in the Workers Compensation and Rehabilitation Act for the grant of leave by the District Court (by s 93D prior to its amendment), Parliament caused the appeal provisions of s 79 of the District Court of Western Australia Act 1969 to be of application. As the amending Act did not expressly exclude those appeal provisions, it is implicit, in my opinion, that those appeal provisions continue to apply. It would be wrong, therefore, to construe s 32(7) in such a way as to render them nugatory. On that basis, it seems to me, s 32(7) should be construed to mean that the amended provisions do not affect the awarding of damages in proceedings for the commencement of which the District Court gave or should have given leave under the former provisions before the assent day.
17 In my opinion, in the present case, for the reasons expressed by Wallwork J, the District Court should have given leave under the former provisions before the assent day. Accordingly, I agree with the orders proposed by Wallwork J.
18 WALLWORK J: In recent times, prior to 5 October 1999, an injured employee was not entitled to commence an action for damages for personal injury against his or her employer without the leave of the District Court and then only when the employee's likely future pecuniary loss was at least equal to $109,650 - s 93D(4) and (5) of the Workers Compensation and Rehabilitation Act 1981 ("the Act").
19 The appellant in this matter sought leave to proceed with such an action for damages. The question to be decided was whether the appellant had a real and not a remote chance of recovering a sum for future pecuniary loss of at least $109,650. That was the prescribed amount at the date of the judgment. On 9 July 1999 the appellant's application was dismissed. He now appeals from that decision.
20 Primarily it is submitted for the appellant that leave would have been granted if the learned Judge had acted on the correct rates for the appellant's earnings when calculating the appellant's likely loss of future earning capacity and future loss of superannuation benefits.
(Page 9)
21 The first argument for the appellant is that the learned Judge in calculating the sum for loss of future earning capacity, based the calculation on a rate of earnings which was correct at the time the appellant was injured when employed as a train driver but which rate was out of date by the time of the calculation. It was claimed that the learned Judge had used too low a sum in the calculations.
22 It was submitted that the assessment had been made on the basis of the correct rates the appellant would have been able to earn in the future as a passenger ticket/service officer but out of date rates for a train driver which was the appellant's occupation before he was injured. This had the effect of decreasing the real difference between the two sums and decreasing the sum calculated for future loss of earning capacity.
23 It was conceded that otherwise the learned Judge had applied the correct principles and law with respect to the application including that her Honour had correctly acted on the basis which most favoured the appellant, provided that that basis was not far fetched or fanciful.
24 The appellant agreed that the learned Judge had acted on the highest pre-accident income which the appellant had earned as a train driver in the three financial years to 30 June 1997. It was said in the reasons for judgment:
"The plaintiff's highest income whilst he was working in his pre-accident occupation as a train driver in the three financial years preceding 30 June 1997 (which was approximately the time he first attended a medical practitioner in relation to his injury) was the year ending 30 June 1997. At that time his income was $566.30 net per week. From this figure one must deduct the sum of $428 net per week which the plaintiff was capable of earning in his employment as a passenger/ticket officer paid under award conditions by the defendant."
25 The sum of $428 net per week referred to in that passage was the earning rate applicable at the time of the judgment in July 1999. However it had been compared with the earnings rate in the year ending 30 June 1997. Therein was said to be the error made by the learned Judge.
26 The question is what were the correct figures which should have been used for the calculation.
27 A starting point can be made by comparing the rate of earnings of a shed driver, which appear in the same schedule as the rate which the
(Page 10)
- learned Judge used for the appellant's earning rate as a passenger/ticket officer. That schedule is in the appeal papers at p 86. The net pay in that schedule for a passenger/ticket officer is $428 per week. That sum comes after the deduction of tax from a gross rate of $549.85 per week. In the same schedule, the rate for a shed driver is $816.41 per week, which after the deduction of $224.55 for tax, comes down to $591.86 per week net. That sum is higher than the $566.30 per week which was the figure used by the learned Judge.
28 Another relevant fact is that it can be assumed that a shed driver was not as highly paid as a train driver, due to the fact that shed driving is limited to a particular area around the sheds and not on the open rail line. A shed driver is a less responsible position than a train driver due to the fact that the train driver is using the public lines and crossings etc.
29 It should be said at this stage that the learned trial Judge was handicapped in coming to her decision due to a lack of suitable and accurate evidence. However if the rate of a shed driver which was available had been used, that rate would have increased the calculated sum for future loss of earning capacity.
30 The next relevant fact is that the annual rate for a shed driver's gross wage using a 52 week year and the schedule already referred to, would be $42,453 per year. There was affidavit evidence available to the learned Judge from the appellant in which the appellant deposed:
"I am presently in receipt of worker's compensation payments in the sum of $520.29 net per week. This amount is calculated on my base earnings but there was overtime with penalties available and I could have earned as much as $45,000 gross per year."
31 That affidavit evidence was not disputed by other evidence but it was not accepted by the learned trial Judge who said that there was no "cogent" evidence called to that effect and that she did not understand the appellant "to pursue this claim."
32 Having in mind the greater responsibilities of a train driver on the open track and the $42,453 annual rate for a shed driver, $45,000 gross per year seems to be a reasonable sum on which to base the calculation "on the basis which most favours the plaintiff" (AB 10, B-C). That gross sum calculates out at $865.38 gross per week, which after the deduction of $246.40 for tax leaves a net earning of $618.98 net per week compared to the $566.30 sum which was used by the learned Judge.
(Page 11)
33 It is appreciated that the learned Judge said "that there was no evidence supporting this assertion" - AB 8, B-C - but with respect, an affidavit from the plaintiff is evidence if it is obviously reasonable and not shown to be erroneous. That could have been done by the respondent if it was not correct. Also, the earnings of a train driver would be higher than those of a shed driver. I would not now disregard that affidavit evidence due to the fact that at the hearing counsel for the plaintiff had sought to rely on the tax assessment figures after the estimate of $45,000 gross had been said to be only an "assertion". The $45,000 seems to be a reasonable sum and if it was not correct, it was not shown to be so at the time. It could in any event not prejudice the respondent in the event of a trial.
34 If the $45,000 is accepted and the net weekly sum of $618.98 is taken, and the figure of $428.40 is deducted from it (being the residual earning capacity used by the learned Judge), the sum remaining is $190.58. If 95 per cent of that is taken (a 5 per cent discount was applied by her Honour) and the correct multiplier at $618.65 is used, the figure calculated is $112,007. That is above the prescribed figure of $109,650.
35 To the sum of $112,007 could be added a sum for loss of superannuation benefits which her Honour allowed at $6500 and the sum of $4000 for future medical expenses which sum was also allowed by her Honour. The total sum thus calculated is $122,507.
36 The above calculations do not take into account the contingency that the appellant may in the future be unable to work a full week or the certainty that he will be a less competitive unit in the work force: Wright v Shire of Albany, unreported; FCt SCt of WA; Library No 930434; 5 August 1993 and par 13 of the affidavit of the appellant (AB 32) in which he deposes that he is a less efficient employee than he was prior to the accident.
37 In its submissions, the respondent claims that the appellant could work as a shed driver in reliance upon Dr Dare's evidence, but that seems to be contrary to the findings of the learned Judge who said:
"Despite the optimistic view of Dr Dare and Ms Jones, I am of the view on all of the medical evidence that the plaintiff is unlikely to be able to return to his pre-accident occupation as a train or rail car driver with the defendant but there are a number of occupations including those of a nature referred to by Dr Dare that the plaintiff is readily able to carry out."
(Page 12)
38 Although Dr Dare had in the course of those occupations referred to his ability to work as a shed driver, the learned Judge did not further refer to that capacity in the reasons but said:
"As I have previously noted the plaintiff retains a capacity to work on a full-time basis in a variety of occupations including that of a passenger/ticket/customer service officer. In my view the plaintiff retains a substantial or significant residual earning capacity."
39 Further on in the reasons her Honour said:
"It is evident that the plaintiff is capable of performing a variety of physical occupations including that which he was carrying out with the defendant at the time of his resignation."
40 Her Honour further stated that she was satisfied on the evidence that the appellant had demonstrated a loss of capacity to carry out his pre-accident work. Her Honour referred to the fact that at the time he resigned, the appellant was employed as a passenger/ticket/service officer. Her Honour then used the earning rate of a passenger/ticket/service officer to make her calculations.
41 It was said at the hearing of this appeal that at the hearing when the affidavit evidence as to the $45,000 was said to be an assertion, counsel for the appellant took the approach: "All right, we will say then that the figure to adopt is $553 net per week."
42 In my view that does not detract from the fact that the evidence of the $45,000 was present, and in my view should have been accepted. The approach taken by the learned Judge was that the court should act on the view "most reasonably open on the evidence" which most favours the plaintiff provided that such an interpretation or view is "not far fetched or fanciful" - Roe v Durrant, unreported; DCt of WA; Library No D970279; 12 September 1997; Sgro v New Cement Company Pty Ltd, unreported; DCt of WA; Library No 4564; 3 August 1995; Samson v Industrial Progress Corporation Ltd, unreported; FCt of WA; Library No 970058; 21 February 1997. That with respect was the correct approach. There would also be no prejudice to the respondent in the event of a trial if the evidence was not correct. In any event it is apparent that the appellant would have earned more than $816.41 net per week, which was the base rate of a shed driver. The appellant was not a shed driver. He was a train driver.
(Page 13)
43 In my opinion, it follows that in arriving at a total sum of $91,781.34 for the likely future pecuniary loss of the appellant, the learned Judge erred.
44 The next contention raised by the respondent was that s 32(7) of the 1999 amendment to the Act precludes the appellant taking this matter any further at this stage even if he were otherwise successful with his appeal.
45 Section 32(7) provides:
"The amended provisions do not affect the awarding of damages in proceedings -
(a) commenced before the assent day; or
(b) for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
46 The argument advanced for the respondent is that the District Court did not give leave under the former provisions before the assent day and therefore the right to commence proceedings no longer exists. A new scheme is now in place and an employee must now establish as a pre-condition of the right to claim damages that he has a degree of permanent disability that is not less than 16 per cent - s 93E of the principal Act as amended - Re Monger; Ex parte Ivey [1999] WASC 250.
47 The abovementioned contention of the respondent involves the proposition that had this applicant been given leave, he could now proceed but because he was refused leave (in my view incorrectly) he cannot now proceed. The proposition of the respondent is based on the contention that any judgment which this Court now gives in this appeal cannot be regarded as the District Court giving leave pursuant to s 32(7) before the assent day which was 5 October 1999.
48 No authority was cited by the respondent to support the proposition that when a court has wrongly refused leave in circumstances such as the present, an appeal court cannot right the situation. It offends notions of justice to hold that where a person is refused leave in error and should have been given that leave, he or she is precluded from proceeding in the way he/she would have been able to do had the application for leave been considered in the correct manner.
(Page 14)
49 The authority which the respondent relies on is Nicol v Allyacht Spars Pty Ltd (No 2) (1988) 165 CLR 306, 309 to 310. In Nicol, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ followed the view which had been taken in English decisions, as expressed by Collins MR in Borthwick v Elderslie Steamship Co (No 2) [1905] 2 KB 51 at 519. That view was:
"… though … the Appeal Court has all the powers of the High Court, including the power to give any judgment and make any order which ought to have been made by the court of first instance, still the judgment of the Court of Appeal is a judgment of the date on which it was given, and it would require the invocation of the powers given by Order XLI, r 3 … if that judgment is to be antedated. The judgment if not ipso facto antedated by reason that it substituted for the judgment in the court below."
50 At 331 of Nicol their Honours said:
"But to empower an appellate court, in the exercise of its appellate jurisdiction, to 'give such judgment as ought to have been given in the first instance' does not, as Romer LJ pointed out in Borthwick mean that the judgment of the appellate court 'must be regarded for all purposes as if it had been the judgment given by the Judge in the court below."
51 The respondent contends that it is now too late for this Court to give the leave envisaged in s 32(7)(b) which is referred to above.
52 Where a statute takes away accrued rights in the manner in which the respondent suggests the 1999 amendment of the Act does, s 37 of the Interpretation Act 1984 is relevant. That section says:
"(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(a) …
(b) …
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to repeal;
- (d) …
(e) …
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
- (2) The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals is effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."
53 In my view it is clear that the appellant had exercised his right to seek leave to proceed pursuant to s 93D(4). He is now continuing the legal proceeding he commenced in respect to the right as contemplated in s 37(1) of the Interpretation Act.
54 In my opinion the appeal should be allowed and the appellant should be given leave to proceed with his action.
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