| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PARKER -v- ST BARTHOLOMEWS HOUSE INC [2002] WADC 175 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 24 JUNE 2002 DELIVERED : 9 AUGUST 2002 FILE NO/S : CIV 2473 of 2001 BETWEEN : KEVIN PARKER Plaintiff
AND
ST BARTHOLOMEWS HOUSE INC
Defendant
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike out statement of claim and dismiss action - O 20, r 19 - Workers' Compensation and Rehabilitation Act 1981, s 64 and s 93E
Legislation: Rules of the Supreme Court of Western Australia
Workers' Compensation and Rehabilitation Act 1981
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Result:
Application dismissed Representation:
Counsel:
Plaintiff : Mr C Prast
Defendant : Mr G R Hancy
Solicitors:
Plaintiff : Slater & Gordon
Defendant : Basile Hawkins
Case(s) referred to in judgment(s):
Thomas v Arimco Mining Pty Ltd Ltd [2000] WADC 142
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: By the action the plaintiff claims damages for loss arising as a result of personal injury allegedly sustained as a consequence of the negligence of the defendant.
2 By its application the defendant seeks to strike out the plaintiff's pleading and to dismiss the action. In the alternative on its oral application it seeks to have the action stayed. At each part of the application the onus is on the applicant. 3 It is common ground that at the material time the defendant was the plaintiff's employer and the action is subject to s 93E (3) of the Workers Compensation and Rehabilitation Act 1981. It is in the following terms: "Damages can only be awarded if: - (a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or (b) the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is recorded in accordance with the regulations." 4 Insofar as the defendant seeks judgment, it is common ground that the effect of the provision is that the plaintiff has no present entitlement to an award of damages. 5 Ultimately it is a matter of determining at what point s93E (3) has application. In Thomas v Arimco Mining Pty Ltd [2000] WADC 142 the Court found that upon its proper construction, s 93E(3) did not prohibit the commencement of an action for damages, it only prohibited the Court from awarding damages in the action. 6 It is my understanding of the defendant’s case that s 93E(3) reveals the intention of the legislature to provide immunity to a class of defendants and that in order to reflect that intention the Court should interpret the provision so as to obviate the need for that class of defendants to engage in litigation subject to s 93E(3) at all. Alternatively, the only certain result of the action progressing to its conclusion is an award of costs in favour of the defendant. 7 Whether the effect of the provision ought to be extended to the point contended for by the defendant is firstly a matter of interpretation.
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8 Consideration is properly given to the context into which the defendant would seek to have the immunity extended. There are few rights more fundamental than that of access to the courts. It is appropriate to consider that but for the interpretation for which the defendant contends, the action of the plaintiff in commencing and proceeding with the action is otherwise lawful.
9 Consideration is also properly given to the words used by the legislature to express the immunity and whether they are capable of supporting the extension for which the defendant contends. 10 The means by which the legislature accorded immunity to the defendant was to prohibit the Court from taking the very last step in the process of litigation. It is significant that it chose that point as part of the expression of the immunity accorded. By contrast, at the time of the enactment of s 93E(3) there was similar a mechanism of prohibition with a similar purpose expressed in s 93D(4) of the same Act in the following terms: "Proceedings in which damages are sought are not to be commenced without the leave of the District Court." 11 Whatever extraneous material may exist and which may be of assistance to the defendant it ought to be difficult to ignore the fact that the legislature appreciated that there is a distinction between the act of a plaintiff in commencing proceedings for damages and the act of the Court in awarding damages. 12 At that point it is appropriate to consider what would motivate the Court to extend the immunity expressed at s 93E(3) to any stage in the proceedings prior to the point at which it is expressed to apply. The onus is on the defendant and bearing in mind the nature of the relief sought it is not lightly discharged. The context in which the provision operates and its effect demand that the Court follows a conservative approach to interpretation. I would add that it is reasonable to consider that the legislature would expect that the Court would adopt that approach. 13 It seems to me that the strength of the application lies more in the prospect that the Court may be motivated to recognise that to allow the proceedings to be continued would somehow constitute an abuse of process. Ultimately for the Court to strike the claim would depend upon a determination being made that the Court was satisfied that even if the claim was established that it was inevitable that the Court could grant no remedy to the plaintiff. That would establish both a lack of utility and
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perhaps some philosophical reflection along the lines that absent the prospect of a remedy there is no cause of action. 14 It is a matter of considering whether that result is inevitable and if so whether to allow for the plaintiff to proceed to that conclusion would be to allow for an abuse of process. 15 I suspect that it would always be doubtful that the application could succeed as there is always a prospect that prior to the time of the application of the provision the legislature may choose to remove the immunity in much the same manner as it was provided. That prospect to one side, in Thomas v Arimco (supra) it was determined that the commencement of such an action did not constitute an abuse of process. By extension in my opinion it was not an abuse of process for the plaintiff to proceed to file a statement of claim. To require the defendant to incur costs in remaining engaged in the litigation by defending an unassailable position is not to put the defendant in any significantly different position from that occupied by any defendant with good reason to be confident. 16 As to any reliance that the defendant may seek to presently draw from s 64 of the Act, it runs into an immediate difficulty in that I am unable to determine whether that provision has any application, there being no evidence that the employer would pay for the relevant examination. Of course, I could infer that that would be the case as the defendant expressly sought to invoke the statutory provision, had issued the requirement and had made the arrangements. However in a context where an applicant seeks to dismiss an action it is appropriate to consider that it carries a significant onus. Where it is reasonable to conclude that it had the ability to bring evidence in relation to an issue but had failed to do so in my opinion it is not appropriate for the Court to be drawing any inferences at all in favour of the applicant. 17 The next consideration is as to whether an action such as this is comprehended by the term "any proceeding under this Act" contained in s 64. I accept that from the perspective of the defendant that it is a conclusion easily drawn and in its favour if for no reason other than to give some overall consistency to the scheme of the Act. Further, as a matter of logic it ought not to be open to a worker who has or at least who will be required to rely upon the Act to selectively seek to resile from its mechanisms. 18 There can be no doubt that the legislature knows the difference between proceedings for statutory entitlements and proceedings for relief
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at common law. The only proceedings available under the Act are for statutory entitlements. Those entitlements do not include the right to institute proceedings for damages for loss. 19 Whatever the analysis may be, ultimately the Court would be called upon to determine whether the plaintiff ought to be constrained from conducting himself in what otherwise is a lawful activity. If the legislature intended that s 64 had any impact upon such an activity arguably it is more appropriate for a court to consider that the legislature has failed to adequately express itself than it is for a court to consider that the legislature intended to proscribe an otherwise lawful activity. 20 I note that in dealing with the prospect of a stay being granted, in Thomas v Arimco Mining Pty Ltd (supra)the following obiter comments were made: "This is not to say that in an appropriate case a court would not order a stay of proceedings thus instituted until the provisions of s 93E(3) had been complied with on the basis that if it was to permit the common law action to proceed it would run up against the court's rules and practice directions which are intended to promote a timely disposition of the matters before it, such as then would result in unnecessary wasted effort and expense. It would all be a matter of balance. Some of the questions which could arise would be those that have often been dealt with when courts consider whether or not their process is being abused, and indeed the second defendant here argued as a second limb to its argument that to permit this action to go forward in the circumstances as they presently exist would be an abuse of the court's process. There may be occasions when that will be the case. However, as the argument was not expressly addressed in the submissions filed on behalf of the second defendant nor in the argument of the parties except as to the discussion of an appropriate remedy in proper circumstances, I am not in a position to decide whether I should grant a stay or not." 21 Some of those comments would suggest that the interests of the Court have some priority over the interests of the parties. I have some considerable difficulty with that proposition. There is no principle that supports case management, it is simply a strategy promoted by the Court in the interests of enforcing efficiency. That brings me to the second point. It ought to be of some considerable concern that the Court may
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promote its strategy over the interests of parties. There would be scope to discern that the Court becomes prosecutor and judge in its own interest. The significant consideration is that any interest that the Court may have in promoting case management is utterly insignificant compared with the interests of the plaintiff. The proposition that an abuse of the case management timetable could justify a stay is alarming. 22 The function of the Court is to resolve intractable disputes. It properly takes a robust approach to distractions. And ultimately it comes down to this point: either a cause of action is constituted by the material allegations with which we are all familiar, or it is not. If it seriously suggested that some strategy or practice adopted by the Court as an aid to administration or efficiency, ought to be interposed between the plaintiff and any remedy to which he may be entitled in relation to any cause of action, in my opinion there has been a failure to grasp the reason for the existence of courts. If the Court is to sideline itself it has to ask which other institution is available to parties to resolve intractable disputes in an orderly manner. 23 In my opinion no part of the application has met the standard by which it is properly judged.
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