O'BRIEN v Barminco Investments Pty Ltd
[2005] WADC 63
•8 APRIL 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: O'BRIEN -v- BARMINCO INVESTMENTS PTY LTD & ANOR [2005] WADC 63
CORAM: COMMISSIONER STAVRIANOU
HEARD: 14 FEBRUARY 2005
DELIVERED : 8 APRIL 2005
FILE NO/S: CIVO 178 of 2004
MATTER :IN THE MATTER of s 93D of the Workers' Compensation and Rehabilitation Act 1981 as amended
BETWEEN: GREGORY WILLIAM O'BRIEN
Applicant (Plaintiff)
AND
BARMINCO INVESTMENTS PTY LTD
First Respondent (First Defendant)PLUTONIC GOLD PTY LTD
Second Respondent (Second Defendant)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DEPUTY REGISTRAR HEWITT
File No :CIVO 178 of 2004
Catchwords:
Workers' Compensation - Statutory interpretation - Workers' Compensation and Rehabilitation Act 1981 - Application for leave to bring proceedings - Section 93D - Whether grant of leave open - Doctrine of stare decisis.
Legislation:
Workers' Compensation (Common Law Proceedings) Act 2004
Workers' Compensation and Rehabilitation Act 1981
Workers' Compensation and Rehabilitation Amendment Act 1999
Result:
Appeal dismissed
Representation:
Counsel:
Applicant (Plaintiff) : Mr J R Johnson
First Respondent (First Defendant) : Mr G W Nutt
Second Respondent (Second Defendant) : Mr G W Nutt
Solicitors:
Applicant (Plaintiff) : Paul O'Halloran & Associates
First Respondent (First Defendant) : Jarman McKenna
Second Respondent (Second Defendant) : Jarman McKenna
Case(s) referred to in judgment(s):
Abbott v Minister for Lands [1895] AC 425
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Downsborough v Pinnacle Services Pty Ltd [2004] WADC 197
Duca v Aherns Holdings Pty Ltd [2004] WADC 85
Hanna‑Pauley v David Jones [2004] WADC 69
Henderson v KCut [2004] WADC 13
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Jabar‑Khail v Troon Holdings [2004] WADC 108
Leary v Federal Commissioner of Taxation (1980) 28 ALR 123
Smith v United KG [2004] WADC 194
Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1
Case(s) also cited:
Adams v The Roman Catholic Archbishop of Perth [2002] WADC 28
Mathieson v Burton (1971) 124 CLR 1
Re Monger; Ex Parte Cross [2004] WASCA 176
COMMISSIONER STAVRIANOU:
Introduction
On 3 September 2004 Deputy Registrar Hewitt ordered that the plaintiff have leave under the now repealed s 93D of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") to commence an action against the defendants in respect of a disability suffered on or about 11 May 1999 and on or about 16 September 1999 and/or between those dates and which occurred in the course of his employment with the first defendant. In respect of the second defendant the plaintiff's grant of leave was on the basis that the second defendant was the plaintiff's deemed employer pursuant to s 175 of the Act (Hewitt v Benale Pty Ltd (2002) 27 WAR 91).
The defendants appeal against Deputy Registrar Hewitt's decision. The hearing of an appeal from a Registrar of the Court is a hearing de novo.
On 5 October 1999 the Workers' Compensation and Rehabilitation Amendment Act 1999 ("the Amendment Act") was assented to ("the assent day"). It removed the requirement for leave and imposed other restrictions upon a plaintiff award of damages at common law.
The plaintiff did not have an application pending when the Amendment Act came into effect. The principal issue on appeal was whether the court has power to grant leave under the now repealed s 93D.
The legislative framework
Prior to the Amendment Act, s 93D(1) of the Act provided that damages could only be awarded if the disability resulted in the death of the worker or a serious disability.
Section 93D(2) defined a disability to be serious where the degree of disability would, if assessed as prescribed in s 93D(3), be 30 per cent or more or the future pecuniary loss resulting from the disability was of an amount that is at least equal to the prescribed amount.
Section 93D(4) provided that proceedings in which damages were sought were not to be commenced without the leave of the District Court, although leave was to be granted if —
(a)The disability resulted in the death of the worker or the parties agree that the degree of the worker's disability would, if assessed as prescribed in s 93D(3), be 30 per cent or more; or
(b)On a reference under s 93D(7) or s 93D(8) it was determined that the degree of the worker's disability would, if assessed as prescribed in s 93D(3), be 30 per cent or more; or
(c)The court determined that the worker is likely to have future pecuniary loss resulting from the disability of an amount that was at least equal to the prescribed amount.
By s 32 of the Amendment Act s 93D, s 93E and s 93F were repealed.
Section 32(7) of the Amendment Act provides as follows:
"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."
Section 37 of the Interpretation Act 1984 provides:
"(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –
…
(b)affect the previous operation of the enactment repealed or anything done or suffered under that enactment;
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
…
(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 effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."
On 25 October 2004 the Workers' Compensation (Common Law) Proceedings Act 2004 was assented to. Section 5 of that Act is in the following terms:
"5. Provisions applying to awarding damages
(1)This section —
(a)is to be read in conjunction with section 32 of the 1999 Act as if this section were incorporated with and formed part of that section; and
(b)applies in addition to section 32(7) of the 1999 Act.
(2)Despite section 37 of the Interpretation Act 1984 and any other law, written or unwritten but except as otherwise stated in subsection (3) or in the amended provisions —
(a)the amended provisions apply to, and affect the awarding of damages in, a proceeding; and
(b)the former provisions do not apply to, or affect the awarding of damages in, a proceeding,
unless it is a proceeding —
(c)commenced before the assent day; or
(d)for the commencement of which a court gave leave under the former provisions before the assent day.
(3)Despite subsection (2), section 37 of the Interpretation Act 1984 and any other law, written or unwritten, but except as otherwise stated in section 6(4) —
(a)the amended provisions do not apply to, or affect the awarding of damages in, a proceeding; and
(b)the former provisions apply to, and affect the awarding of damages in, a proceeding,
that is a proceeding —
(c)commenced on or before the day on which this Act receives the Royal Assent with the leave of a court under the former provisions; or
(d)for the commencement of which a court gave leave under the former provisions on or before the day on which this Act receives the Royal Assent or on District Court file number WC 93D 1194/1998."
The submissions of the parties
Each party filed a detailed written outline. Counsel for the defendants submits that the Court should decline to follow previous decisions given by Judges of this Court. Because of that submission I propose to set out the relevant portions of the written submissions.
The defendants' submissions were:
"….
6.On 4 December 2003, in Dossett (supra) the High Court unanimously held that s.37(2) of the Amendment Act did not effect an implied appeal of s.37 of the Interpretation Act 1984 such that the appellant in that matter was entitled to proceed with and have determined his application for leave under the former s.93D of the Act as at the Assent Day.
7.The High Court did not, on the respondent's concession, consider or define the exact nature of the 'right' preserved by s.37(1) of the Interpretation Act (that is, (b), (c) or (f)). No comment was made to whether the relevant 'right' was the contingent cause of action for damages which had been sought to be exercised by the issue of the application for leave or a right to have the originating summons heard independently of the contingent cause of action. The High Court did not (and was not required to) consider the situation of a worker who did not have a pending application for leave as at the Assent Day and made no comment on whether an application for leave could be instituted after the Assent Day. The applicant submits that, contrary to the position adopted in this Court, the reasoning adopted by the High Court does not it is submitted assist a worker such as the plaintiff without a pending application for leave as at the Assent Day.
…
9.The High Court was very careful to confine its decision to circumstances in which there was a pending application as at the Assent Day. The plaintiff was not in that position and there is no issue that the plaintiff did not lodge an originating summons or otherwise seek leave to bring proceedings prior to 5 October 1999 (para 4 affidavit of Kristy Suzanne Weston). He had a contingent cause of action for damages against the first defendant and/or the second defendant that was subject to the procedural restrictions in the Act. He had taken no step to exercise that right prior to the Assent Day but retained that contingent common law thereafter albeit that the procedural restrictions had changed by the Amendment Act. All that happened by the Amendment Act was that the enforcement of his contingent cause of action was made the subject of different procedural conditions, although that contingent right had at all times been the subject of procedural conditions (Dossett, supra, per Kirby J at [59]). The High Court did not consider whether, absent anything done under the Act or any step taken to create, acquire, accrue, establish or exercise or legal proceedings to enforce that contingent cause of action the former provisions applied in place of the new provisions.
10.There have now been at least 8 decisions of Judges of this Court in which leave has been granted irrespective that there was no pending application for leave as at the Assent Day. None of those decisions considered in depth the nature of the 'right' protected by the Interpretation Act in this context. The first and second defendants submit that those decisions wrongly interpreted the Dossett decision by extending the effect of the decision beyond its facts to the situation where there (sic) no proceedings were pending as at the Assent Day. Indeed, in three matter (sic) leave has been granted to appeal to the Full Court on that issue – Downsborough v Pinnacle Services Pty Ltd [2004] WADC 197; Duca v David Jones Holdings Pty Ltd [2004] WADC 85; Hanna‑Pauley v David Jones Limited [2004] WADC 69).
11.The first and second defendants submit that the relevant right for the purposes of the Interpretation Act was the contingent cause of action for damages that was subject to the procedural restrictions in Division 2, Part IV of the Act and not any right to bring an application for leave, which was merely a step taken to exercise or enforce the contingent common law right protected by s.37(1)(f) of the Interpretation Act. Viewed in that way, once the Act was amended the contingent right remained and could still be exercised but was then subject to the new conditions effected by the Amendment Act.
12.Further, it is submitted that even if the respondent's (sic) 'right' was that to bring an application for leave, the plaintiff had not taken any relevant step to acquire, etc that right to gain protection under s.37(1)(c) of the Interpretation Act. Again, this issue has not been the subject of consideration.
13.However, a specially constituted bench of five justices of this Court in Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 ('Toolan') held that a worker whose application for leave had been refused prior to the Assent had a right of appeal under the provisions of the District Court Act in that instance protected by the Interpretation Act. That situation was different to where a worker had a mere power to take advantage of an enactment (Mathieson v Burton (1971) 124 CLR 1 at 23). There was no express (or it is submitted implied) consideration or disapproval of that approach in Dossett.
14.In Toolan, Parker J said at [55‑56]:
'It is not enough to attract the operation section 37(1)(c) of the Interpretation Act, however, that there be a right at the time of the repeal. The right must be one which at that time may properly be described as "created, acquired, accrued, established or exercisable".'
15.His Honour continued at [57]:
'With respect to the appellant's contingent entitlement to an award of damages at common law in accordance with the Act, the position is not as clear. The appellant had not issued his writ as at the date of repeal, 5 October 1999. He could not do so because of the refusal of leave which remained unreserved at that date. The question arises, therefore, whether by virtue of the failure to issue the writ the contingent right or entitlement of the appellant is properly to be categorised as perhaps merely "a power to take advantage of an enactment", as in Mathieson v Burton (1971) 124 CLR 1 at 23, which power had not then been sufficiently exercised so as to give rise to a (contingent) right "created, acquired, accrued, established or exercisable" prior to the repeal within the meaning of s37(1)(c).'
16.His Honour then went on to consider the judgment in Abbott v The Minister for Lands [1895] AC 425. At [59] he said:
'In the judgment of their Lordships it was said at 431.
"It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to anyone who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far‑reaching.
It may be, as Windeyer J observes that the power to take advantage of an enactment may without impropriety be termed a 'right'. But the question is whether it is a 'right accrued' within the meaning of the enactment which has to be construed.
Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words 'obligations incurred or imposed'. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment."
While the terms of s37(1)(c), viz "created, acquired, accrued, established or exercisable", appear to be more expansive than the word "accrued" in the proviso considered in Abbott v Minister for Lands, the reasoning of their Lordships leads to the question whether the present appellant has taken steps towards availing himself of his contingent right or entitlement to an award of damages in accordance with the former provisions sufficient to give rise to a right "created, acquired, accrued, established or exercisable" within the meaning of s37(1)(c).'
17.His Honour concluded at [62]:
'In the context of this particular statutory scheme it seems to me that a worker claiming to have an entitlement to an award of damages at common law in accordance with the former provisions, who in accordance with the former provisions sought leave of the District Court to commence proceedings, and pursued that application for leave to the point of decision by the Court only to have leave refused, and who had instituted an appeal against that refusal and was duly pursuing that appeal, and who thereby had a right to have that refusal of leave reversed and to have a grant of leave if it had been wrongly refused by the District Court, has taken clear and manifest steps, and at that stage cannot do more under the statutory scheme, ''towards availing himself" of that right'.
18.In Dossett in the Supreme Court, His Honour Justice Scott said at [19]:
'In my view, there is no inconsistency between the provisions of section 32(7) of the Amendment Act and section 37 of the Interpretation Act. The result is, where no relevant proceedings are pending as at 5 October 1999, then, irrespective of the date of the accident or the date upon which the injury or disability occurred, the Amendment Act applies, unless one or other of the saving provisions in section 37(2) applies.'
19.Whilst the decision of the Full Court in Dossett was reversed in the High Court, the High Court agreed that there was no inconsistency between the Amendment Act and the Interpretation Act. The High Court did not specifically consider the situation where there were no proceedings pending as at the Assent Day.
20.In accordance with Toolan, whilst the plaintiff might have had a contingent entitlement to grant of leave pursuant to the former s.93D as at the Assent Day it was a mere right only as opposed to an accrued right because the plaintiff had taken no step towards availing himself of his contingent right or entitlement to an award of damages in accordance with the former provisions. In those circumstances, the operation of s.37 of the Interpretation Act was not attracted.
21.The plaintiff's application should also have been dismissed for policy reasons because, as their Lordships correctly held in Abbott, if it were held that the effect of the Interpretation Act was to leave it open to anyone who could have taken advantage of any repealed enactments still to take advantage of them, the result would be very far reaching indeed.
22.There is nothing in the Workers Compensation (Common Law Proceedings) Act 2004 that alters that position.
23.Further and in any event, under the amendments to the Act effected by the Amendment Act, leave was not required before the issue of a writ of summons but pursuant to s.93E(3) of the Act damages could only be awarded if it was agreed or determined that an injured worker has suffered a degree of disability of not less than 30% or an injured worker establishes a degree of disability of not less than 16% and elected in accordance with the Act and the Workers' Compensation & Rehabilitation Regulations to retain the right to an award of damages at common law. The plaintiff has brought an application under the amended provision prior to bringing this application for leave.
24.Even if the plaintiff had a right to bring an originating summons for leave under the former s.93D of the Act following the Amendment Act (which is denied), then s.37(1) of the Interpretation Act 1984 merely provided that a legal proceeding in respect of that right 'may' be instituted, continued or enforced irrespective of the amendment. There is nothing in the provisions of the Interpretation Act (or Dossett) to the effect that the plaintiff must exercise that right or was unable to exercise any right that he acquired under the provisions of the Act as amended by the Amendment Act. That is, it is submitted that the plaintiff can elect in those circumstances as to whether to exercise any right that he might have under the former or amended provisions of the Act.
25.In this matter, the plaintiff has lodged a writ of summons in action 2075 of 2000 against the second defendant in respect of the same cause of action for which he seeks leave by this application (paras 5, 6 and 7 and annexure KSW‑1 to the affidavit of Kristy Suzanne Weston). He has also made an application for a determination of degree of disability of not less than 16% or, alternatively, not less than 30% against each of the first defendant and the second defendant.
26.The plaintiff did not obtain or seek leave prior to the issue of that writ and it must be assumed that he proceeded in that way on the basis that he had a right to seek damages without need for a grant of leave under the amended provisions of the Act. Having made that election and acted in such a way as to represent to the first and second defendant's (sic) that he would seek to exercise his contingent common cause of action subject to the procedural limitations in the amended Act, the plaintiff is estopped from purporting to assert a right under the former provisions of the Act.
27.Further and in the alternative, the first and second defendants repeat that the plaintiff seeks leave in this application in respect of the same cause of action for which it has already issued proceedings. Even if leave can be granted, a grant of leave to issue a separate action in respect of the same cause of action is an abuse of process and the court should not grant leave to allow the plaintiff to abuse the processes of the court. A grant of leave in these circumstances cannot be made so as to validate the previously issued writ (Re Monger; ex parte Cross [2004] WASCA 176).
28.No grant of leave could or should be made in the plaintiff's favour."
The submissions made by the plaintiff were as follows:
"2.In effect, the appellants in this appeal seeks to convince the Court to diverge from the line of decisions by Judges of this Court in decisions including Henderson v KCut [2004] WADC 13 (Macknay J), Hanna‑Pauley v David Jones [2004] WADC 69 (Williams J), Duca v Aherns Holdings Pty Ltd [2004] WADC 85 (per Chaney J), Jabar‑Khail v Troon Holdings [2004] WADC 108 (O'Sullivan J) and Smith v United KG [2004] WADC 194 (Martino J).
3.The starting point in relation to this appeal is that whilst not bound by decisions of this Court, the Judge should not diverge from the earlier decisions of the 5 members of the Court referred to in paragraph 2, unless convinced by the appellants that such decisions were clearly wrong (see Adams v The Roman Catholic Archbishop of Perth [2002] WADC 28, per Nisbet J).
4.As Nisbet J commented in Adams, 'particularly in the workers' compensation jurisdiction it is important that there be a uniformity of approach' citing: Walsh v Commonwealth of Australia (1998) 155 ALR 182 (see also Leary v Federal Commissioner of Taxation (1980) 28 ALR 123 @ 127, cited by Martino J in Smith (supra) @ paragraph 7 and Chaney J in Duca @ 22).
5.It is submitted that the appellants' appeal must fail on this point. It is clear from the submissions raised in the original outline of submissions that no argument is sought to be put here, that has not been put and rejected in the line of cases referred to in paragraph 2 herein.
6.Arguments based upon Abbott v Minister for Lands [1895] AC 425 and Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 that to have a right etc protected by section 37(1)(c) or (f) of the Interpretation Act 1984 (WA), some act must have been taken by the plaintiff towards 'availing himself of such right' were considered and rejected in Duca (see @ paragraph 20 and 23), Jabar‑Khail (see @ paragraph 16‑23) and Smith (see @ paragraph 10‑12).
7.As repeatedly stated in such decisions, the suggested line of distinction between the situation dealt with by the High Court in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69 (in which an originating summons seeking the requisite leave was filed before October 1999) and in cases such as this, where leave is only sought following the High Court's decision, is illusory. The reasoning behind the High Court's decision in Dossett applies to both situations.
8.We submit that the High Court's statement in Dossett @ paragraph 21 per Gummow, Hayne and Heydon JJ that 'in respect of this injury the common law of tort gave the appellant well established rights' clearly supports the position that it is not necessary for a worker to have acted to assert a right, for it to qualify for protection per s 37(1)(c) of the Interpretation Act. This was the view of O'Sullivan J in Jabar‑Khail (see @ paragraph 23). Toolan does not decide the contrary (see Martino J in Smith @ paragraph 12).
9.It is submitted that quite apart from the above, the appellants face a further, insurmountable barrier by reason of passage of the Workers' Compensation (Common Law Proceedings) Act 2004 ('the 2004 Act'), assented to on 25 October 2004.
10.In our submission, by section 5 of the 2004 Act (a copy of which is attached to these submissions), whatever may have been the position prior to such Act, by reason of the leave previously granted in this matter, the matter falls within the circumstances set out in section 5(3)(c), and the so defined 'former provisions', by operation of such section, apply to the plaintiff's claim.
11.Section 5 of (sic) 2004 Act effectively provides that upon the hearing of this appeal, issues about the application or otherwise of section 27 of the Interpretation Act prior to 25 October 2004 are irrelevant. As from that date, the position is dictated by the terms of section 5 of the 2004 Act. It is clear on its terms therefore that the 'former provisions' apply to this matter.
12.It is clear that the 2004 Act was enacted to remove uncertainty as to whether the pre‑October 1999 threshold provisions applied to claims or the post‑October 1999 scheme applied. The facts in this case, are an illustration of why it was important, as a matter of fairness, that such uncertainty was removed."
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
In Dossett (supra) the plaintiff's s 93D application had been made but not determined prior to the assent day. The High Court held that s 32(7) of the Amendment Act did not affect an implied repeal of either s 37(1) or s 37(2) of the Interpretation Act 1984. Section 37(2) did not exhaustively deal with the position. Accordingly, a plaintiff who had made application prior to the assent date but had not had it determined could proceed with the application and have his claim dealt with under the former provisions. The right to proceed arose because of s 37(1) or s 37(2) of the Interpretation Act 1984. It was accepted that there was left untouched by the Amendment Act whatever advantage the plaintiff otherwise obtained by the operation of s .37 of the Interpretation Act 1984 (per Gummow, Hayne and Heydon JJ at [32]).
The submission made by counsel for the plaintiff was that the defendants seek to convince the Court to diverge from the line of decisions by Judges of this Court in Henderson v KCut [2004] WADC 13 (Macknay J), Hanna‑Pauley v David Jones [2004] WADC 69 (Williams J), Duca v Aherns Holdings Pty Ltd [2004] WADC 85 (per Chaney J), Jabar‑Khail v Troon Holdings [2004] WADC 108 (O'Sullivan J) and Smith v United KG [2004] WADC 194 (Martino J), Downsborough v Pinnacle Services Pty Ltd [2004] WADC 197. In each of Hanna‑Pauley , Duca, Downsborough, Jabar‑Khail, and Smith leave was granted irrespective that there was no pending application for leave as at the assent day. Counsel has advised that leave to appeal to the Full Court has been granted in relation to three of the decisions, namely Downsborough, Duca, and Hanna‑Pauley. The submission of the defendants in this appeal was that those decisions wrongly interpreted Dossett (supra) by extending the effect of the decision beyond its facts to the situation where no proceedings were pending as at the assent date. I note that Smith (supra) is also the subject of appeal.
I should follow the decisions of the judges of this Court unless I am convinced they are wrong: Leary v Federal Commissioner of Taxation (1980) 28 ALR 123 at 127. As Martino DCJ pointed out in Smith (supra) this is particularly desirable where there are appeals to the Full Court which will determine the issue.
I do not consider that Dossett (supra) is distinguishable on the basis that at the assent day no application for leave had been made. Macknay DCJ in Henderson (supra at [29]) reached a similar conclusion in a case where an application had been made before the assent day and dismissed.
In Dossett (supra) the respondent conceded that the appellant had a right in terms of s 37(1)(b),s 37(1)(c) or s 37(1)(f) of the Interpretation Act 1984. No such concession was made in this case and it was submitted that the plaintiff had a mere right only as opposed to an accrued right. This was because the plaintiff had taken no step towards availing himself of his contingent right or entitlement to an award of damages in accordance with the former provisions. In those circumstances it was submitted that the operation of s 37 of the Interpretation Act 1984 was not attracted. I note that in s 37(1)(c) of the Interpretation Act 1984 one of the categories of right, interest, title, power or privilege which is unaffected is one which is "exercisable". Reliance was placed upon the decisions of Abbott v Minister for Lands [1895] AC 425 and Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1.
In Dossett (supra) at [ 21] Gummow, Hayne and Heydon JJ said:
"In respect of this injury the common law of tort gave the appellant well established rights. Those rights were not thereafter to be abrogated by statutory intervention in the absence of clear words or necessary implication to that effect."
As O'Sullivan DCJ said in Jabar‑Khail (supra) at [23] "… the 'well established rights' included a right of action which had not been abrogated before the 5 October 1999 but only subjected to 'legislative inroad' …"
In Smith (supra) Martino DCJ analysed the decisions in Abbott (supra) and Toolan (supra)and said:
"10In Abbott v Minister for Lands [1895] AC 425 the Privy Council held that a proviso in legislation which preserved 'all rights accrued and obligations incurred or imposed' under repealed legislation did not preserve a right to make additional conditional purchases of lands where an individual had not done an act towards availing himself of that right could not properly be deemed as a right accrued.
11.The defendant relied upon the decision in Abbott v Minister for Lands and upon Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 particularly at par 60 where Parker J said:
'While the terms of s 37(1)(c), viz "created, acquired, accrued, established or exercisable", appear to be more expansive than the word "accrued" in the proviso considered in Abbott v Minister for Lands, the reasoning of their Lordships leads to the question whether the present appellant has taken steps towards availing himself of his contingent right or entitlement to an award of damages in accordance with the former provisions sufficient to give rise to a right "created, acquired, accrued, established or exercisable" within the meaning of s 37(1)(c).'
12In Toolan the Full Court held that a worker who had appealed against a refusal of this Court to grant leave and was pursuing that appeal had taken steps towards availing himself of his contingent right to damages against his employer. The Full Court in Toolan did not decide what the position would be if the worker had not taken that step. Toolan therefore does not decide the position.
13I am not convinced that the decisions of the judges in this Court to which I have referred are wrong. There are two actions the plaintiff might have commenced in 1999 prior to the 1999 amending Act that could be described as the pursuit of rights. One is an application for leave under s 93D. The other is an action for damages if that leave had been granted. While both rights may be described as contingent Toolan makes clear that contingent rights can be protected by s 37(1)(c) of the Interpretation Act. Whether any step must be taken to enforce those rights prior to the repealing legislation has not yet been determined. …"
I respectfully agree with the above analysis of Martino DCJ in Smith (supra). One of the rights the plaintiff could have pursued was the s.93D application. It was a right to make an application to bring proceedings in negligence. In terms of s 37(1)(c) and s 37(1)(f) of the Interpretation Act 1984 this was a right created, acquired, accrued, established or exercisable prior to repeal.
For these reasons I do follow the prior decisions of this Court. In the circumstances I consider the Court does have the power to grant leave to the plaintiff.
Further submissions by defendant
On 9 August 2000 the plaintiff commenced an action in the court claiming damages against the second defendant in respect of the accident which occurred on 11 May 1999 ("the 2000 action"). No leave was sought prior to commencement of the 2000 action.
The defendants submit that as the plaintiff did not obtain or seek leave prior to the issue of the 2000 action it must be assumed that he proceeded in that way on the basis that he had a right to seek damages without need for a grant of leave under the amended provisions of the Act. Further, it is submitted that having made that election he had acted in such a way as to represent to the first and second defendants that he would seek to exercise his contingent cause of action subject to the procedural limitations in the amended Act. Accordingly, it was submitted that the plaintiff is estopped from purporting to assert a right under the Amendment Act. The plaintiff submits and I accept that issues of estoppel and election are matters to be pleaded and then determined at trial.
Further, it was contended that even if leave can be granted a grant of leave to issue a separate action in respect of the same cause of action constituted by the 2000 action is an abuse of process. Upon the hearing of the appeal counsel for the plaintiff gave an undertaking to discontinue one of the actions, alternatively to have the actions consolidated. In the circumstances in my view there is no merit in the abuse of process submission.
Whilst it is not strictly necessary for to decide the issue I consider the effect of the Workers' Compensation (Common Law Proceedings) Act 2004 ("the 2004 Act"), assented to on 25 October 2004 to be that s 93D as it was prior to the Amendment Act applies to this action.
Conclusion
The appeal should be dismissed.
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