Perakis v Secretary to the Department of Transport
[2016] VSC 320
•9 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2013 06665
| MARIA PERAKIS (as Executrix on behalf of the Estate of the late Sotirios Perakis) | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF TRANSPORT, PLANNING AND LOCAL INFRASTRUCTURE | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 March 2016 |
DATE OF JUDGMENT: | 9 June 2016 |
CASE MAY BE CITED AS: | Perakis v Secretary to the Department of Transport |
MEDIUM NEUTRAL CITATION: | [2016] VSC 320 |
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ACCIDENT COMPENSATION – Application under s 135BB of the Accident Compensation Act 1985 – Worker commenced proceedings under s 135A intending to rely on s 135BB - Whether filing of generally endorsed writ satisfied requirement in s 135BB(3) – Requirement in s 135BB(3) not satisfied.
ACCIDENT COMPENSATION – Application under s 135BB of the Accident Compensation Act by representative of worker’s estate – Worker commenced proceedings under s 135A – Worker died before making application under s 135BB(3) – Orders in s 135BB(3) not made before worker died - Whether worker had a valid cause of action for purposes of s 29(1) of the Administration and Probate Act 1958 – Worker did not have a valid cause of action under s 135A or s 135BB at time of death – Consideration of expression ‘nunc pro tunc’.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B.F. Quinn QC with Mr P. Over | Slater & Gordon |
| For the Defendant | Mr S. O’Meara QC with Mr M. Hooper | Lander & Rogers |
HER HONOUR:
Sotirios Perakis commenced proceedings against his former employer to recover damages for contracting asbestosis. He brought his claim pursuant to s 135A of the Accident Compensation Act 1985 (Vic) (‘the ACA’), but died from his injury before the Court granted him leave pursuant to s 135BB of the ACA.
This is now an application under s 135BB of the ACA by Maria Perakis (‘the plaintiff’), as executrix on behalf of the estate of the late Sotirios Perakis, for leave to continue the proceeding commenced by Mr Perakis.
Preliminary questions
The Court has been asked to determine the following preliminary questions:
(1)Can the plaintiff to the proceeding make application pursuant to s 135BB of the ACA:
(a)now as for before 1 January 2014 for leave for Mr Sotirios Perakis to proceed nunc pro tunc with the proceeding; or
(b)for leave for the plaintiff to proceed nunc pro tunc with the proceeding?
(2)If no to question (1), what is the effect of s 135BB of the ACA on the proceeding?
Assumed facts
The parties jointly submitted the following facts for the purpose of determining the preliminary questions[1]:
[1]Preliminary Questions & Agreed Facts dated 15 December 2015
·On 24 December 2013 Mr Perakis commenced a proceeding in the Supreme Court of Victoria and it was assigned Court proceeding number S CI 2013 06665 (‘the proceeding’).
·The plaintiff is the executrix of the estate of the late Mr Sotirios Perakis.
·The Public Transport Corporation and its predecessor entities employed Mr Perakis between 14 May 1984 and 28 August 1999 (‘the employment’).
·In the course of the employment, Mr Perakis was a worker within the meaning of the ACA.
·In the course of and for the purpose of the employment up to about 1995, Mr Perakis was exposed to asbestos dust and fibres from assisting in the replacement of asbestos cement conduits.
·Mr Perakis suffered an injury – asbestosis – arising out of or in the course of the employment up to about 1995.
·Asbestosis is an ‘asbestos-related condition’:
(a)within the meaning of the definition stated in s 3(1) of the Asbestos Diseases Compensation Act 2008; and
(b)within the meaning of s 135BB of the ACA.
·Mr Perakis’ and his estate’s ability to recover damages in respect of the asbestosis was and would be governed by s 135A of the ACA.
·Before commencing the proceeding, Mr Perakis did not comply with sub-ss (1) to (6), (13), (13A), (18A) and (18B) of s 135A of the ACA.
·Mr Perakis brought the proceeding on the basis that:
(a)s 135BB of the ACA applied; and
(b)he had a ‘serious injury’ within the meaning of s 135A(19) of the ACA.
·On 1 January 2014, Mr Perakis died, and a cause of his death was asbestosis.
·Between 24 December 2013 and 1 January 2014:
(a)Mr Perakis had not filed with the Supreme Court of Victoria a summons making an application pursuant to s 135BB(3) of the ACA to an Associate Judge of the Supreme Court of Victoria; and
(b)an Associate Judge had not made an order pursuant to s 135BB(3)(a) of the ACA allowing leave for Mr Perakis to proceed nunc pro tunc with the proceeding.
·On 1 August 2014, Derham AsJ made orders in the proceeding including substituting Mrs Perakis as the plaintiff.
·On 6 August 2014, an amended writ was filed in the proceeding in accordance with the order of Derham AsJ.
·In February 2015, the plaintiff filed in the proceeding a statement of claim dated 9 February 2015.
·On 27 March 2015, Daly AsJ made orders. The orders included that:
(a)the proceeding was fixed for trial on 11 November 2015;
(b)the defendant file a defence by 10 April 2015.
·The defendant filed a defence dated 15 October 2015.
·Paragraph 20 of the defendant’s defence states that:
the claim as commenced by Sotirios Perakis and now being pursued by the plaintiff as the executor of his estate is governed by the provisions of the Accident Compensation Act 1985. Such claim must be struck out on the grounds that the plaintiff and before her, Sotirios Perakis in his lifetime, did not apply to an Associate Judge of the Supreme Court for orders as required by s 135BB of the Accident Compensation Act 1985. Therefore, the proceedings have not been brought in accordance with section 135A of the Accident Compensation Act 1985 and according the plaintiff has no entitlement on behalf of the estate to recover damages against [the defendant].
·On 24 November 2015 the plaintiff filed with the Supreme Court of Victoria a summons making an application, if needed, pursuant to s 135BB(3) of the ACA.
·Neither the plaintiff nor Mr Perakis applied within 30 days of the commencement of the proceeding for an order under s 135BB(3) of the ACA.
Legislative provisions
Section 135BB was introduced in 2010 and provides:
135BB Actions by workers with asbestos-related conditions
(1)This section applies to a worker who may have an entitlement to recover damages in accordance with section 134AB or 135A in respect of an injury that is an asbestos-related condition arising out of, or in the course of, or due to the nature of, employment.
(2)If this section applies, the worker may, subject to compliance with the requirements of this section, bring proceedings in accordance with—
(a)…
(b)section 135A without complying with subsections (1) to (6) and subsections (13), (13A), (18A) and (18B) of that section.
(3)If a worker commences proceedings under section 134AB or 135A on the basis that this section applies, the worker must within 30 days of the commencement of the proceedings apply to an Associate Judge of the Supreme Court—
(a)for an order allowing leave for the worker to proceed nunc pro tunc; and
(b)for an order allowing an expedited hearing of the proceedings if the asbestos-related condition gives rise to an imminent risk of death.
(4)The Associate Judge of the Supreme Court must not grant the orders referred to in subsection (3) unless the Associate Judge of the Supreme Court is satisfied on the balance of probabilities that the injury arising out of, or in the course of, or due to the nature of, employment is an asbestos-related condition.
(5)If the Associate Judge of the Supreme Court does not grant the orders referred to in subsection (3), the Associate Judge of the Supreme Court must make an order that the proceedings be struck out on the grounds that this section does not apply and that the proceedings have not been brought in accordance with section 134AB or 135A.
(6)If the Associate Judge of the Supreme Court does grant the orders referred to in subsection (3), the worker can only recover damages in accordance with section 134AB, 135A or 135AC if the worker establishes that the worker has a serious injury within the meaning of section 134AB(38) or 135A(19).
(7)If the worker dies from the asbestos-related condition before the hearing of the proceeding, it is established for the purposes of subsection (6) that the worker had a serious injury within the meaning of section 134AB(38) or 135A(19).
(8)In this section, asbestos-related condition has the same meaning as it has in the Asbestos Diseases Compensation Act 2008.
To summarise, if it applies, s 135BB permits a worker to bring proceedings in accordance with s 135A without satisfying s 135A(1) to (6), (13), (13A), (18A) and (18B) ‘subject to compliance with the requirements’ of s 135BB.[2]
[2]ACA, s 135BB(2).
The requirements are that the worker ‘must’ apply to an Associate Judge ‘for an order allowing leave for the worker to proceed nunc pro tunc’ within 30 days of commencing proceedings.[3]
[3]ACA, s 135BB(3).
If leave is granted, the worker has an order conferring a right ‘to proceed nunc pro tunc’. If leave is not granted, the proceeding ‘must … be struck out’ because s 135BB ‘does not apply’ and proceedings ‘have not been brought in accordance with section … 135A’.[4]
[4]ACA, s 135BB(5).
Plaintiff’s submissions
The plaintiff submitted that the filing of the writ constituted compliance with s 135BB of the ACA. The plaintiff argued s 135BB does not specify or require any separate application by summons or other mechanism to be made, rather, commencing the action by writ with reference to s 135BB is all that is required to satisfy the requirements of the section and the 30 day limitation. That is, the generally endorsed writ incorporates, by reference to s 135BB, a plea for the orders referred to in s 135BB(3). The plaintiff submitted that because the section is silent as to the form of the application, the court should favour this interpretation.
It was submitted that if the Court is of the view that the application was inadequately pleaded, inadequately referred to, or that compliance was inadequate through general endorsement, those matters could be rectified by an appropriate amendment to the endorsement, and that the amendment would relate back to the date of the writ.
The plaintiff further contended that even if the Court was of the view that the application was required to be made by summons, it has the power to forgive the non-compliance.
The plaintiff stated that the issue of whether there has been compliance with s 135BB is one of statutory construction and interpretation. The plaintiff maintained that the purpose of s 135BB is to benevolently confer benefits to the narrower class to which s 135BB applies, that is, to alleviate in asbestos claims, the consequences of the application of s 135A pre-litigation requirements. Section 135BB departs from the strict formalities of s 135A, and it was submitted by the plaintiff that, where possible, a construction of the provision consistent with that beneficial objective must be preferred. The plaintiff argued that the purpose of the section is apparent from the provisions, but also evident from the Second Reading Speech. On this point, it was submitted that the ACA was amended to provide provisional damages for people suffering from asbestos-related conditions, and expedient processes and procedures for workers with asbestos-related conditions.
It was submitted that the Second Reading Speech was silent on the importance or integral nature of compliance with any mechanical requirements as a quid pro quo for the receipt of the benefit. The purpose, it was submitted, was to emasculate these types of claims from the ‘straight jacketed approach that has been the hallmark of 135A’ and that it ‘suggested deliberate departure from the strict formalities of 135A’. It was thus submitted that the provisions must be construed against that ‘indisputable legislative purpose’.
It was submitted that there was no requirement by Mr Perakis to apply pursuant to s 135BB(3) in the nine days between commencing his proceeding and his death. It was submitted that at the time of his death, Mr Perakis had a valid proceeding on foot and it could not have been impeached for want of compliance with s 135BB.
The plaintiff further submitted that upon the death of Mr Perakis, the effect of s 29(1) of the Administration and Probate Act 1958 (Vic) (‘the APA’) was that his cause of action survived for the benefit of the estate. It was submitted that there was no need for the estate of Mr Perakis to comply with s 135BB(3), as it only applied to the ‘worker’ and not to his estate.
The plaintiff submitted that s 135BB is silent on the consequences of non-compliance with s 135BB(3). It was submitted that s 135BB gives no power to the Court to dismiss the claim simply because the plaintiff does not ‘apply’ under s 135BB(3). The plaintiff submitted that s 135BB(5) provides an exhaustive description of the circumstances in which an Associate Judge may strike out a proceeding commenced under s 135BB. Those circumstances do not include a situation where no application for orders has been made within the 30 day period. It was submitted that the consequence of non-compliance is not that an Associate Judge can strike out the proceeding.
The plaintiff submitted that if the Court determines that s 135BB(3) must be, but has not been, complied with, it retains a residual discretion to permit and entertain such application, notwithstanding the expiry of the 30 day period. It was submitted that that discretion ought be exercised in the plaintiff’s favour.
Defendant’s submissions
The defendant submitted that the issue centred on the operation of s 135A and s 135BB, and argued against the propositions advanced by the plaintiff.
The defendant submitted that s 135BB required Mr Perakis to make an application within 30 days of commencing the proceeding. The defendant contended that Mr Perakis did not ever make such an application.
The defendant did not accept the plaintiff’s submission that the writ constituted an application for the purpose of s 135BB(3). The defendant submitted that the writ did no more than reflect the opening words of s 135BB(3). It was submitted that this is confirmed by the executrix later seeking to make such an application by summons dated 24 November 2015.
The defendant submitted that, in construing the provisions of s 135BB, a worker has no right to proceed in accordance with s 135A unless leave is obtained ‘to proceed nunc pro tunc’ under s 135BB(3). Further, if leave is not obtained under s 135BB(3), then pursuant to s 135BB(5), the proceeding must be struck out.
The defendant submitted that a beneficial approach to construction cannot alter the plain words of s 135BB or the settled construction of s 135A. The defendant submitted that there is no power vested in the Court under the Act to extend the time limit in which an application must be made, and that the result is, it was submitted, that upon his death, the plaintiff had no cause of action. The defendant submitted that the making of the application within 30 days is essential to enliven jurisdiction. It was submitted that the time limit is a condition of the exercise of that jurisdiction.
The defendant submitted that by reason of the combined operation of ss 135A and 135BB(3), the worker’s pleaded cause of action remained extinguished upon his death, because he had not complied with the requirements of the ACA, such that his cause of action could arise. Therefore it follows, it was submitted, that no cause of action came or could later come to be vested in and survive for the benefit of the plaintiff’s estate.
The defendant observed that whilst the provision has a beneficial purpose, it dismisses the submission by the plaintiff that the Court has a residual discretion, citing that this is contrary to the words of s 135BB, which provides that the worker must make the application.
Analysis
Does the plaintiff’s generally endorsed writ satisfy the requirement in s 135BB(3)?
The endorsement on the plaintiff’s writ is dated 24 December 2013 and states:
The plaintiff was born on 29 October 1946 and pleads that he:
(1)The plaintiff was born on 29 October 1946 and brings a claim for damages for personal injuries including interstitial lung disease and/or asbestosis suffered as a consequence of his negligent exposure to and inhalation of asbestos products, dust and fibres during his employment with the first defendant and/or through his exposure to and inhalation of asbestos products manufactured by the second defendant.
(2)The plaintiff is a worker under the Accident Compensation Act 1985 (Vic) (“the Act”).
(3)The plaintiff brings the proceedings under section 135A of the Act.
(4)The plaintiff brings the proceedings on the basis that section 135BB of the Act applies.
(5)The plaintiff has a serious injury within the meaning of section 135A(19) of the Act.
The endorsement then states that the plaintiff claims damages, medical and like expenses, interest and costs.
As the plaintiff submits, the endorsement put the defendant and the Court on notice that the plaintiff was seeking to rely on s 135BB. But this does not mean that the plaintiff complied with the requirement in s 135BB(3) to make an application.
In my view, the plaintiff’s act of filing the generally endorsed writ met the terms: ‘bring proceedings’ and ‘commences proceedings’ in ss 135BB(2) and (3) respectively.
Filing a writ amounts to commencing proceedings. Under r 4.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), a proceeding is commenced by writ or by originating motion, unless otherwise provided by an Act. Rule 5.11 provides that a proceeding shall be commenced by filing the originating process, and originating process is defined to include writ.
Filing a writ also amounts to bringing proceedings, for the purposes of s 135BB(2). ‘Bring proceedings’ and ‘commence proceedings’ are used interchangeably in ss 135BB and 135A. Section 135A uses both expressions ‘commence proceedings in accordance with this section’ and ‘bring proceedings in accordance with this section’ with no apparent distinction in meaning. Further, the sequence of, and connection between, ss 135BB(2) and (3) demonstrate that ‘bring’ and ‘commence’ refer to the same action. Sub-section (2) says a worker may, subject to compliance with certain requirements, bring non-compliant s 135A proceedings if s 135BB applies. Put simply, sub-s (2) contemplates the doing of an act. Sub-section (3) says that if the worker does in fact commence non-compliant s 135A proceedings on the basis that s 135BB applies, the worker must make an application for certain orders. Again, put simply, sub-s (3) says that if the worker does the act contemplated by sub-s (2), then the worker must make an application. The application must be made within 30 days of the doing of the act contemplated by sub-s (2). The same act is therefore referred to three times in sub-ss (2) and (3): first as ‘bring proceedings’, then as ‘commence proceedings’, and finally, as ‘commencement of the proceedings’. Although different expressions are used, the two sub-sections refer to one act. That act is, to use the more official expression, the commencement of proceedings.
The plaintiff argued that Mr Perakis’ generally endorsed writ should be taken to be an application to an Associate Judge for the purposes of sub-s 135BB(3). I do not accept this argument. Paragraphs (3) and (4) of the endorsement do no more than state that Mr Perakis was commencing the proceeding under s 135A on the basis that s 135BB applied. That is, Mr Perakis was doing the act contemplated by sub-s (2). Sub-section (3) provides that if a worker does the act contemplated by sub-s (2), the worker must make an application to an Associate Judge. The act of commencing proceedings is therefore separate to the act of applying to an Associate Judge. Filing a writ indicating that the plaintiff is commencing non-compliant s 135A proceedings on the basis that s 135BB applies does not, itself, amount to making an application to an Associate Judge for the orders specified in sub-ss 135BB(3)(a) and (b). If it did, there would be no need for the requirement that the plaintiff make application to an Associate Judge within 30 days of the commencement of proceedings.
In this case, Mr Perakis commenced proceedings contemplated by sub-s 135BB(2), but did not make an application as required by sub-s 135BB(3). The generally endorsed writ did not satisfy the requirement in sub-s 135BB(3) to apply to an Associate Judge for orders specified in sub-ss 135BB(3)(a) and (b).
I note that paragraph [4] of the endorsement adds little to the endorsement. Even without that paragraph, the defendant may infer that the plaintiff was seeking to rely on s 135BB as the defendant will be aware that the plaintiff has not complied with the requirements of s 135A. If a plaintiff commences a proceeding under s 135A without complying with all the sub-sections of s 135A, it is reasonable to infer that the plaintiff will be relying on s 135BB. Paragraph [4] of the endorsement merely confirms what the defendant might already suspect.
At the time of Mr Perakis’ death, did he have a cause of action under s 135A or s 135BB?
It is common ground that a worker must satisfy the procedures and meet the conditions imposed by s 135A before a cause of action even arises and before a proceeding can be validly commenced.[5] If a worker dies before satisfying the procedures and meeting the conditions imposed by s 135A, there is no cause of action for the purposes of s 29(1) of the APA.[6] So much is true of claims governed by s 135A alone.
[5]See Quinlan v Catholic Regional College [2015] VSC 463, [28]-[31] and the cases there cited.
[6]See Swannell v Farmer [1999] 1 VR 299.
Where s 135BB applies, the position may be different. The plaintiff submitted that as long as a worker satisfies the criteria in s 135BB(1), the worker has a vested right to commence a proceeding without needing to take any preliminary step or meet any condition. The requirements of s 135BB are not conditions precedent but comprise steps that it is contemplated will be taken after the proceeding is commenced. On the other hand, the defendant submitted that until the court made the orders referred to in s 135BB(3), the worker does not have a valid cause of action and his/her proceeding was not validly commenced.
The plaintiff’s submission is attractive, especially when the language of s 135BB is compared with the language of s 135A. Section 135A achieves its result by using the expressions ‘The worker must not commence proceedings in accordance with this section…unless…’ and ‘a worker may not bring proceedings in accordance with this section unless…’. In contrast, s 135BB provides that ‘If this section applies, the worker may, subject to compliance with the requirements of this section, bring proceedings’.
I agree that on their face, s 135BB(2) and (3) suggest that when Mr Perakis commenced his proceeding on the basis that s 135BB applied, he had a validly commenced proceeding and a valid cause of action. However the question is, before it is known if the Court will grant the worker leave to proceed nunc pro tunc, what does the worker have upon commencing proceedings under s 135BB? Does the worker have an ‘invalid’[7] proceeding with the possibility of retrospective validation, or does the worker have a ‘valid’ proceeding subject to retrospective invalidation? If a worker commencing proceedings under s 135BB has a valid cause of action and proceedings are validly commenced, there may subsequently be a need for leave to proceed, but would the grant of leave necessarily need to be given nunc pro tunc?
[7]The terms ‘invalid’, ‘invalidity’ and ‘nullity’ are convenient shorthand expressions for the concepts the majority in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 described as ‘the plaintiff having no right capable of being submitted to a court for adjudication’ and the court having ‘no jurisdiction to adjudicate the plaintiff’s right’. The majority also noted that there is little substantive difference between those two concepts.
In my view, there is a tension between the expressions ‘may…bring proceedings’ and ‘If a worker commences proceedings…on the basis that this section applies’ on the one hand, and the expression ‘nunc pro tunc’ and s 135BB(5) on the other. There is support within s 135BB for both the plaintiff’s and the defendant’s arguments. There are, however, several features of s 135BB that point to the conclusion that upon commencing proceedings under s 135A through s 135BB, the worker does not have a valid cause of action, and the proceedings are not validly commenced.
First, the Court decides whether s 135BB applies. The plaintiff submitted if the criteria in s 135BB(1) are met, the section applies, and the worker has a vested right to commence proceedings under subsection (2). This submission fails to deal with subsections (4) and (5), which demonstrate that it is not for the worker to decide himself or herself that s 135BB applies. The Court will grant the orders referred to in s 135BB(3) only if satisfied on the balance of probabilities that the injury arising out of, or in the course of, or due to the nature of, employment is an asbestos-related condition. If the Court does not grant the orders, the section does not apply, even though the worker has commenced proceedings on the basis that the section does apply. The section applies if the Court finds that it does, and then makes the orders referred to in subsection (3). Subsection (2) is an invitation to commence proceedings on the basis that the section applies, but whether the section does in fact apply is to be determined at a later stage.
Second, in the case of s 135BB, the legislature has used the expression ‘nunc pro tunc’ to deal with a strict leave requirement applicable after proceedings have been commenced, not before, and not to deal with overcoming procedural difficulties as is ordinarily the case.
When leave is given nunc pro tunc it is ordinarily because the failure to obtain leave before commencing proceedings is an error, defect or irregularity capable of being cured. Put another way, the requirement to obtain leave is not a strict requirement.
In Emanuele v Australian Securities Commission the failure to obtain leave was described as being procedural rather than going to jurisdiction, and it was not fatal to the proceeding.[8] In Hartley Poynton Ltd v Ali[9] Ormiston JA undertook an extensive study of the history of nunc pro tunc judgments and orders. His Honour concluded as follows:
[8](1997) 188 CLR 114, 125 (Dawson J), 129 and 131 (Toohey J).
[9](2005) 11 VR 568 (Hartley Poynton).
This tedious exercise has been designed to show that, with a few minor exceptions, nunc pro tunc judgments and orders, whether dependent on Cumber v Wane or Turner (or Ecroyd or any other decisions in this line of authority), have not been granted to alter the substantive rights of parties but only to overcome procedural irregularities and difficulties.
…
The conclusions I would suggest should be drawn from common law and Chancery practice as to antedating, as developed by Australian courts (but overlooking certain misconceptions which appear to have crept in inadvertently), are as follows. First, the power of the courts to antedate orders and judgments, which comprehends from its terms the making of orders nunc pro tunc, is derived from the court’s inherent jurisdiction or, as expressed in the courts of common law, was a power derived from the common law…
…
If these matters be correct then (1) there is no inconsistency between the common law and Chancery lines of authority and (2) neither rule was intended to affect substantive rights or otherwise cause prejudice in its effectuation. Each rule was designed to overcome procedural difficulties of a kind which rarely if ever surfaced again in the English (or Australian) courts.
…
… what is being discussed is a power which has been seen to be a power derived from the common law or, as one might prefer now to describe it, an inherent power of common law courts to remedy a situation by dating an order in a way which could give effect to the justice of the case. It is a broad power and thus capable of adaptation to suit the circumstances arising in any particular case.[10]
[10]Ibid [73], [76], [78], [80].
Applying those conclusions to the case at hand, Ormiston JA said:
In the end, therefore, the issue remains to be resolved whether the policy of the law requires consideration of the statutory restriction placed on the right to sue or whether that restriction should be ignored because of a more general policy relating to the antedating of judgments and orders. I cannot for myself see that the court can ignore the express requirements of Parliament. To do so would be to create (or, more precisely, recreate) a right and to give effect to it by an increased award of damages by enforcing a right which no longer exists and which does not survive in favour of the plaintiff’s personal representative. The practice of the courts in giving judgments or in making orders nunc pro tunc, effectively by antedating them, whether pursuant to the rules or under their inherent jurisdiction, cannot deem something to exist which does not exist and cannot deem something to have remained in existence which no longer remains in existence. That was the essence of cases such as Clarke and Foppoli and it is the policy of the law which should be insisted upon wherever substantive rights are in issue, whatever may be said in circumstances raising only procedural issues or in circumstances where existing rights are appropriately capable of being adjusted before or after the event.[11]
[11]Ibid [91].
Thus, the authorities indicate that nunc pro tunc orders are usually associated with non-strict leave requirements applicable before proceedings are commenced. Usually, where leave to proceed is given nunc pro tunc, there is a ‘valid’ proceeding on foot before leave is given. In other words, even without leave, the proceeding is validly commenced. The lack of leave is a procedural defect or irregularity that may be cured later.
However, where the requirement to obtain leave before bringing proceedings is a strict requirement, the Court may not grant leave nunc pro tunc in order to cure the error. In Roberts v ANZ Banking Group Ltd[12] the Court of Appeal in Queensland held that a proceeding commenced without leave was a ‘nullity’ and should be struck out. The plaintiff had commenced proceedings despite not complying with s 280 of the WorkCover Queensland Act 1996 (Qld). Section 305 of the same Act provided:
(1) Subject to section 303, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 280.
(2) The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to WorkCover from the claimant's failure to comply with the requirements of section 280.
[12][2006] 1 Qd R 482.
De Jersey CJ, with whom Jerrard JA and Mackenzie J agreed, held that s 305 did not authorise the granting of leave nunc pro tunc, and as leave had not been obtained before bringing the non-compliant proceeding, the proceeding was a ‘nullity’.[13]
[13]Ibid [35], [38]. See also TPFL Ltd v SB Group Property Valuers and Consultants Pty Ltd [2012] NSWSC 853, [30]-[52]; and National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400, 408.
The traditional availability of nunc pro tunc orders supports the plaintiff’s submission. The common law approach to nunc pro tunc orders, however, does not determine the proper construction of s 135BB. The task of the Court is to construe the actual words of the legislation in their context. As Kirby J noted in Emanuele v Australian Securities Commission:
Care must therefore be exercised in the use of analogies drawn from different legislation, having different purposes. The most that a study of these cases will show is that minds can differ in deriving the legislative purpose where Parliament has omitted expressly to provide for a consequence of default in obtaining leave. Even historical patterns must be studied with care. The focus should remain, from first to last, upon the statutory language containing the leave requirement, understood in its context and having regard to its apparent purposes.[14]
[14](1997) 188 CLR 114, 148.
In my view, the legislature has in s 135BB(3) invoked the Court’s power to make nunc pro tunc orders in a novel way. First, it has expressly invited workers to commence proceedings and then seek leave nunc pro tunc. This means leave may only be obtained nunc pro tunc. It cannot be obtained before commencing proceedings, which is the ordinary approach to leave requirements. Second, it has provided in s 135BB(5) that where leave is not granted nunc pro tunc, s 135BB does not apply, and the worker is in the position of a worker who has brought proceedings that are governed by, but do not comply with s 135A. This has the result that the worker does not have a cause of action and has not validly commenced proceedings. If leave is not given, the proceeding is not validly commenced. Put another way, the leave requirement is a strict requirement. This means the granting of leave under s 135BB alters substantive rights. This differs from the position outlined in Hartley Poynton. On my interpretation of s 135BB, the legislature has used the expression nunc pro tunc to deal with a strict leave requirement applicable after proceedings have been commenced.
In reaching this conclusion I have considered the purposes of s 135BB. Section 135BB was referred to as a ‘beneficial amendment’ in the second reading speech for the Asbestos Diseases Compensation Act 2008.[15] It was also said in the second reading speech that:
It is envisaged that workers who are dying from an asbestos-related condition will use the new provision in section 135BB. This is because, unlike section 135BA, the new section also makes further provision for this group of worker, by providing that the serious injury threshold is deemed to be satisfied if the worker dies from the asbestos-related condition before the serious injury issue is resolved. This will allow damages to then be recovered by the deceased worker’s estate and is a good outcome for families of workers who have died from an asbestos-related condition before their common-law claim could be resolved.[16]
[15]Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4070 (Mr Holding, Minister for Finance, WorkCover and the Transport Accident Commission).
[16]Ibid.
Asbestos-related conditions are notorious for deteriorating rapidly, and requiring a dying worker to comply with the conditions in s 135A before a cause of action arises works an injustice on the worker if he or she does not have the time to meet those conditions. The policy behind the insertion of s 135BB is to allow workers who have an asbestos-related condition to commence proceedings immediately, and have their serious injury application and their common law damages claim heard concurrently. This policy recognises that for workers with an asbestos-related condition, time is of the essence, so it is necessary to allow them to commence proceedings that do not comply with the usual requirements of s 135A.
The construction of s 135BB arrived at in this case gives effect to the purpose of the amendment. Workers with asbestos-related conditions are able to commence proceedings without navigating the rigmarole of s 135A. However, the words used in the section compel the conclusion that while the worker may commence proceedings through s 135BB, he or she does not have a valid cause of action until the order referred to in s 135BB(3)(a) is made. Once leave is given nunc pro tunc, the worker has a valid cause of action to which s 29 of the APA will attach if the worker dies before his/her claim is determined.
The second reading speech refers to s 135BB(7), which deems the serious injury threshold to be satisfied if the worker dies from the asbestos-related condition before the serious injury issue is resolved, and says the subsection will allow damages to then be recovered by the deceased worker’s estate, which is a ‘good outcome’. I note that subsection (7) is a deeming provision for the purposes of subsection (6), and subsection (6) applies once the Court has already made the orders referred to in subsection (3). I consider the reference in the second reading speech to damages being recovered by the deceased worker’s estate to be a reference to the estate recovering damages where the worker has died after the order referred to in subsection (3)(a) has already been made.
I accept the defendant’s submission that until the Court made the orders referred to in s 135BB(3), Mr Perakis did not have a valid cause of action, and the proceedings were not validly commenced. I also accept the defendant’s submission that the granting of leave nunc pro tunc alters substantive rights. This conclusion results in the nunc pro tunc order referred to in s 135BB(3) operating differently from the traditional nunc pro tunc order.
Should the residual discretion (if it exists) be exercised in the plaintiff’s favour?
For the reasons above, I find that the Court does not have a residual discretion to grant Mrs Perakis the orders in s 135BB(3), namely because no cause of action survived for the benefit of Mr Perakis’ estate under s 29(1) of the APA. However, if a cause of action did survive for the purposes of s 29(1), and the Court does have such a discretion, I will consider whether the Court should exercise that discretion in favour of the plaintiff.
I accept that after Mr Perakis’ death his family was grieving, and it seems reasonable to infer that they did not turn their minds to making a s 135BB(3) application in the 21 days following his death. I also accept that Mrs Perakis was not substituted as plaintiff to the proceeding until 1 August 2014, and that she could not have taken any steps in the proceeding before that date. Had Mrs Perakis sought to compile a s 135BB(3) application within 30 days of 1 August 2014, the Court would have exercised the argued-for discretion in her favour. However, the plaintiff did not file a summons pursuant to s 135BB(3) until 24 November 2015, which was over 15 months since she was substituted as plaintiff in the proceeding. The plaintiff has not explained this delay. The plaintiff did not, for instance, give evidence of any belief or understanding that the generally endorsed writ filed by Mr Perakis constituted an application for the purposes of s 135BB(3).
Instead, the plaintiff attempted to shift the onus of complying with s 135BB(3) onto the defendant. It was submitted that, despite being ordered to file a defence by 10 April 2015, the defendant did not file a defence until 15 October 2015, and it was only in that defence that the defendant raised the alleged non-compliance with s 135BB(3). This may be so, but it remains the case that it is the plaintiff’s responsibility to comply with s 135BB if seeking to rely upon it. It is not for the defendant to point out that the plaintiff has not met the requirements of the section. A plaintiff’s tardiness in complying with s 135BB cannot be excused on the basis of the defendant’s tardiness in raising the non-compliance.
For these reasons, the Court would not have exercised the residual discretion (if it existed) to allow Mr Perakis and his estate to now make application under s 135BB(3).
Conclusion
The plaintiff’s generally endorsed writ does not satisfy the requirement in s 135BB(3) to make application for the orders referred to in that subsection. Mr Perakis died without having satisfied the requirement in s 135BB(3) and without having obtained the order referred to in s 135BB(3)(a). At the time of his death, Mr Perakis did not have a valid cause of action under ss 135A or 135BB to which s 29(1) of the APA could apply. Accordingly, the claim that Mr Perakis sought to bring through s 135BB did not survive for the benefit of his estate. The plaintiff’s claim must be dismissed.
These conclusions are sufficient to dispose of this application and the plaintiff’s proceeding. It is unnecessary to determine the other questions posed by the plaintiff’s application, including the question concerning the consequences of failing to meet the 30 day requirement in s 135BB(3).
This is an unfortunate outcome for Mrs Perakis, but it is an outcome that may easily be avoided in future cases. Workers seeking to rely on s 135BB may file their writ and the application referred to in s 135BB(3) at the same time. For the purposes of the application under s 135BB(3), minimal affidavit evidence may suffice. The Court can then make the order referred to in s 135BB(3)(a) and the worker will have a valid cause of action to which s 29(1) will attach if the worker dies before his/her claim is finally determined.
I will hear the parties on the appropriate form of orders and costs.
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