Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0118

MARIA PERAKIS (as executrix on behalf of the estate of the late Sotirios Perakis)	Applicant
v
SECRETARY TO THE DEPARTMENT OF TRANSPORT, PLANNING AND LOCAL INFRASTRUCTURE	Respondent

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JUDGES:	WARREN CJ, OSBORN AND KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2017
DATE OF JUDGMENT:	22 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 265
JUDGMENT APPEALED FROM:	[2016] VSC 320 (Zammit J)

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ACCIDENT COMPENSATION – Application under s 135BB of the Accident Compensation Act 1985 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 estate had a valid cause of action for purposes of s 29(1) of the Administration and Probate Act 1958 – s 135BB(3) does not impose a jurisdictional bar preventing a worker’s claim from having been validly commenced – Appeal allowed.

ACCIDENT COMPENSATION – Application under s 135BB of the Accident Compensation Act 1985 –Whether filing of generally endorsed writ satisfied requirement in s 135BB(3) – Requirement in s 135BB(3) not satisfied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B Quinn QC with Mr P Over	Slater & Gordon
For the Respondent	Mr S O’Meara QC with Mr M Hooper	Lander & Rogers

WARREN CJ:

On 24 December 2013, Mr Sotirios Perakis filed a writ in the Supreme Court of Victoria claiming damages from his former employer for contracting asbestosis.

On 1 January 2014, Mr Perakis died. The question arose as to whether Mr Perakis had a valid cause of action that survived to the benefit of his estate.

At first instance, the trial judge found in favour of the present respondent. For the reasons which follow, I would grant leave to appeal and allow the appeal.

Mr Perakis’ claim against his employer

From 1984 to 1999, Mr Perakis worked for the Public Transport Company and its predecessor entities. For the period up to around 1995, Mr Perakis was involved in the replacement of asbestos cement conduits. Mr Perakis was exposed to asbestos dust and fibres and subsequently contracted asbestosis.

On 24 December 2013, Mr Perakis filed a writ which stated he was bringing a proceeding against the respondent under s 135A of the Accident Compensation Act 1985 (‘the Act’). The writ also stated that the plaintiff was bringing the proceeding on the basis that s 135BB of the Act applied.

Relevant statutory provisions

The provisions that Mr Perakis sought to invoke and around which this appeal revolves operate, in short, as follows.

Section 135A is long and complex, and imposes significant hurdles to the commencement of an action by a worker for the payment of compensation. The provision sets out a series of requirements that a worker bringing a proceeding against an employer must satisfy before the worker’s claim may be validly brought.

These requirements can include, inter alia, that a determination be made of the degree of impairment the worker is suffering, a ‘serious injury’ being identified, that offers and counter-offers be made in a prescribed way and in prescribed time-frames, to name but a few.

In addition, the section governs the award of damages, specifying the type of damages that may be awarded, who the damages may be awarded to, and even the quantum of damages and the circumstances in which damages may be reduced- for instance, for damages to be awarded, they may need to fall within an upper and lower cap, as assessed.

Section 135BB was inserted in 2008 by the Asbestos Diseases Compensation Act 2008. This provision is specifically directed at workers who are suffering from asbestos-related conditions. It provides that such workers who might otherwise apply for damages under s 135A may instead bring proceedings under s 135BB without satisfying certain requirements imposed by s 135A.[1] Essentially s 135BB provides a less onerous and expedited procedure to claim damages than is provided in s 135A.
[1]Section 135BB also applies to those workers who might otherwise apply for damages under s 134AB. As s 134AB is not relevant to this matter, that aspect of the section will not be discussed further.

However, s 135BB(2) stipulates that in order to bring a proceeding under the section there must be compliance with its own requirements. These requirements are those set out in s 135BB(3). The subsection provides that a worker must apply for an order from an associate judge of the Supreme Court within 30 days of commencing the proceeding allowing the worker leave to proceed nunc pro tunc.

Section 135BB provides as follows:

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 of 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)section 134AB without complying with the requirements of the subsections (1) to (21) and subsections (27), (28) and (38) of that section; or
(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 of 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.

Upon its enactment and insertion into the Act, the second reading speech relating to s 135BB recorded the legislature’s intent that the provision be a ‘beneficial amendment’ to the Act.[2] The Minister for Finance, WorkCover and the Transport Accident Commission, said that the amendments were designed ‘to provide expedient processes and procedures for workers with asbestos-related conditions’.[3]
[2]Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4070 (Tim Holding).
[3]Ibid 4069.

The operation of s 135BB in practice

At the hearing of this appeal, the Court requested the parties prepare a joint note about the usual practice for hearing an application for orders under s 135BB(3) within the Supreme Court of Victoria. The substantive portion of the parties’ note was as follows:

1.The filing of the writ is the first step. The writ will be issue in the Dust Diseases List of the Common Law Division. Often the writ is issue in urgent circumstances where the plaintiff has only recently contact lawyers and may be at imminent risk of death.
2.Where the Accident Compensation Act 1985 (Vic) (the ACA) applies to some or all of the cause of action the proceeding, a plaintiff’s solicitor normally makes an application under section 135BB(3) of the ACA by filing a summons with the Court.
3.The plaintiff’s solicitor generally files a summons making the s 135BB(3) application after the commencement of the proceeding but within 30 days of the commencement of the proceeding. The timing of the filing of the summons varies from case to case.
4.When a summons is filed within the 30-day period may depend on how long it takes the plaintiff’s lawyers to obtain sufficient evidence in admissible form to satisfy the requirements for making the order under s 135BB(3). Pursuant to ss.135BB(4), an Associate Judge cannot grant orders under ss. 135BB(3) unless the Associate Judge 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.Paragraph 8.1 of the Dust Diseases List Practice Note SC CL 2 of 2017 states:
Applications for nunc pro tunc orders and/or expedited trials should be made on summons and will generally be heard by the Judge in Charge on Fridays in the Court sitting terms.
6.Sometimes supporting evidence is filed as the same time as the summons, and sometimes the evidence (or supplementary evidence) is obtained later. Whether the summons is filed with supporting affidavit material or medical reports depends on whether such material is available, the time at which the plaintiff instructed lawyers, and the time it will take to obtain reports and other information from doctors or other witnesses.
7.Before or after the filing of the summons a plaintiff’s legal representatives can contact the Dust Diseases List lawyers employed by the Supreme Court, an associate to an Associate Judge or the Judge in the Practice Court to request an urgent return date for the summons. The experience of the solicitors for the parties in the present case is that the Court takes all reasonable steps to make time for the hearing of urgent applications, especially where the plaintiff has a limited life expectancy, and will fix return dates of summonses quickly.
8.Although the Court will quickly fix the first return date for a summons making an application, there may be practical matters which affect when the Court can hear and determine the application. This includes where the plaintiff may request time to obtain sufficient evidence for the purposes of s 135BB(3) and (4). It also includes where a defendant may request time to obtain evidence to oppose the application. Complications may arise where a defendant company has been deregistered. Sometimes the hearing of applications under s 135BB(3) are therefore adjourned to a later date.
9.Section 135BB(3) applications are generally made on notice to the defendant(s), but this is not a requirement of the ACA. Generally the Court will require that defendants have been given reasonable notice of the application before making any orders. In such cases, the defendant(s) have to be served with the application and obtain legal representations. Employers insured by the Victorian WorkCover Authority are not the only defendants who may be sued in cases to which s 135BB has application.

Mr Perakis’ estate pursues the claim

On 1 January 2014, Mr Perakis died; eight days after filing the writ. On the date of his death, no additional process, such as a summons had been filed purporting to apply to an associate judge for an order allowing Mr Perakis to proceed under s 135BB.

On 1 August 2014, Maria Perakis, the executrix of Mr Perakis’ estate, was substituted as the plaintiff to the proceeding by order of an associate judge of this Court. On 6 August 2014, Mrs Perakis filed an amended writ. On 9 February 2015, she filed a statement of claim in the proceeding, seeking damages, interest, and costs for both herself as dependent, and for the estate.

In its defence dated 15 October 2015, the respondent claimed that the statement of claim should be struck out as it had not been brought in accordance with the requirements of s 135A and that no exception to those requirements had been applied for or ordered by an associate judge of the Supreme Court under s 135BB.

On 20 November 2015, the parties then agreed to have a separate trial addressing this question. On 24 November 2015, Mrs Perakis filed a summons before an associate judge under s 135BB(3) for leave to proceed. The relief sought in the summons was:

1.Leave pursuant to section 135BB(3) of the Accident Compensation Act 1985 (Vic) to bring this proceeding nunc pro tunc.

2. Further and in the alternative:
(a)Mr Perakis has leave now as for before 1 January 2014 to make an application pursuant to section 135BB(3) of the Accident Compensation Act 1985 (Vic) for leave to bring this proceeding nunc pro tunc; and
(b)leave be granted to Mr Perakis pursuant to section 135BB(3) of the Accident Compensation Act 1985 (Vic) to bring this proceeding nunc pro tunc.

3. Further and in the alternative:
(a)the Plaintiff has leave now as for any date within 30 days of the 24 December 2013 to make an application pursuant to section 135BB(3) of the Accident Compensation Act 1985 (Vic) for leave to bring this proceeding nunc pro tunc; and
(b)leave be granted pursuant to section 135BB(3) of the Accident Compensation Act 1985 (Vic) to bring this proceeding nunc pro tunc.

The summons was heard by a judge of the Trial Division. Mrs Perakis submitted that s 135BB applied to provide a reprieve from the strict requirements of s 135A. Although 30 days had passed with only the writ filed to commence the proceeding, Mrs Perakis submitted that s 135BB’s requirements were nonetheless satisfied. Mrs Perakis made two substantive submissions in this respect. First, it was submitted that the writ itself could be taken to be an application under s 135BB(3) for the section to apply, noting that the section did not explicitly specify the manner in which such an application was to be made. Secondly, Mrs Perakis relied on the beneficial intent of the legislation submitting that, in the circumstances, where Mr Perakis had died before the time limit for his application had expired, non-compliance should not be a bar to the proceeding surviving for the benefit of his estate.

The respondent submitted that non-compliance with s 135BB meant Mrs Perakis had no claim to pursue. As no application had been made for s 135BB to apply within the specified 30 days, the claim fell under the operation of s 135A and failed to meet all its requirements. The respondent submitted that according to the practice regarding s 135A, this meant that no proceeding was validly initiated which could have been passed on to Mr Perakis’ estate.

The parties’ submissions were effectively restated on the application for leave to appeal.

The judgment

The judge rejected the submissions put forward by Mrs Perakis and held that the claim should be struck out as no proceeding had been validly initiated which could have survived for the benefit of Mr Perakis’ estate.

Her Honour held that the writ filed on 24 December 2013 did not constitute an application for the purposes of s 135BB. The judge held that the language in the section indicated that a further act was contemplated which meant that ‘[t]he act of commencing proceedings is therefore separate to the act of applying to an Associate Judge’.[4]
[4]Perakis v Secretary to the Department of Transport [2016] VSC 320 [31].

Having not made an application for an order under s 135BB(3), her Honour found that that section had not been engaged. Her Honour analysed the language in s 135BB and held that it indicated that the worker did not have a valid proceeding on foot until the Court intervened. In particular, the judge looked at sub-ss 135BB(5) which provided that the Court would assess whether s 135BB applied. Her Honour observed ‘[t]he 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’.[5]
[5]Ibid [39].

The judge supported this conclusion with an examination of the history of courts granting nunc pro tunc orders.[6] Her Honour noted that, though retrospective leave orders were ordinarily given simply to rectify procedural defects, here it affected the substantive rights of the worker in having a claim at all.[7] That is, the section had been drafted in a way such that seeking leave nunc pro tunc was a necessary preliminary step before s 135BB could apply and dispensation be made for the requirements of s 135A. Her Honour held that ‘[i]f leave is not given, the proceeding is not validly commenced’.[8] As the application for an order for leave to proceed nunc pro tunc had not been made within the specified 30 days in this case, s 135BB did not apply and the claim fell foul of the requirements in s 135A and had to be struck out.[9]
[6]Ibid [41]–[44].
[7]Ibid [47]–[48].
[8]Ibid [48].
[9]Ibid [53], [58].

In conclusion, the judge noted that it was an unfortunate outcome but could be easily avoided in future cases if applications under s 135BB(3) for a nunc pro tunc order were filed at the same time as the writ.[10]
[10]Ibid[60].

Grounds of appeal

The applicant proposed five grounds of appeal:

1.The learned judge erred in construing s 135BB of the Accident Compensation Act 1985 (the Act) so as to have the effect that a worker who has commenced proceedings under ss 134AB or 135A on the basis that s 135BB has not validly commenced the proceeding and has no valid cause of action unless and until an order is made under s 135BB(3).
2.The learned judge erred in finding that Mr Perakis had not validly commenced his proceeding and had no valid cause of action at the time of his death in circumstances where Mr Perakis had:
(a)commenced on 24 December 2013 a proceeding under s 135A on the basis that s 135BB applied;

(b) died on 1 January 2014;
(c)at the time of his death, not failed to comply with any requirement of s 135BB of the Act.

3.The learned judge erred in not finding that on the death of Mr Perakis his cause of action in the proceeding survived for the benefit of his estate in circumstances where:
(a)he had validly commenced a proceeding under s 135A on the basis that section s applied;
(b)in the proceeding, Mr Perakis had a valid cause of action at the time of his death including in respect of a claim for damages in relation to his asbestos-related condition (or part thereof) arising out of, or in the course of, or due to the nature of, his employment on or after 4 pm on 31 August 1985;
(c)on Mr Perakis’ death the cause of action referred to in sub-paragraph (b) survived for the benefit of his estate pursuant to s 29 of the Administration and Probate Act 1958 (Vic).

4.The learned judge erred in determining that Mr Perakis had not complied with s 135BB(3) of the Act in circumstances where:
(a)he had commenced on 24 December 2013 a proceeding under s 135A on the basis that s 135BB applied;

(b) he died on 1 January 2014;
(c)at the time of his death, s 135BB of the Act did not impose on him any requirement that he had failed to comply with.

5.The learned judge erred in finding that Mr Perakis’ generally indorsed writ did not constitute the making of an application for orders in s 135BB(3) or otherwise satisfy the requirements of that sub-section.

Ground 1: That the learned trial judge erred in finding that there was no proceeding commenced or valid cause of action until an order was made under s 135BB(3)
The applicant’s submissions

Under this ground, the applicant challenges the interpretation of s 135BB adopted by the trial judge and submits that an alternative interpretation is preferable and more consistent with the beneficial legislative intention of the legislature on introducing the provision.

The applicant submitted that the trial judge’s conclusion turned upon her Honour’s treatment of the order that had to be made nunc pro tunc by an associate judge of the Court. According to the applicant, if the words ‘nunc pro tunc’ had not been used in the sub-section, there would have been no reason to conclude a proceeding commenced in reliance on s 135BB would not be valid or be capable of validation.

The applicant submitted that the trial judge’s approach to the nunc pro tunc order and her conclusion that it was being used in a ‘novel way’ in this provision was erroneous for four reasons.

First, the applicant noted that s 1355B(3)(a) — which refers to a worker needing to apply for an order allowing leave for the worker to proceed nunc pro tunc — had a natural and sensible alternative interpretation. Rather than allowing retrospective leave of the Court which validated the commencement of the proceeding itself, this would be allowing the worker retrospective leave to engage in certain procedural steps that one might undertake before a trial but after commencement. For example, issuing subpoenas or taking evidence de bene esse. It was submitted that such steps are frequently taken before leave has been obtained in cases such as the present where a worker’s state of health necessitates urgency.

Second, the applicant submitted that the trial judge’s interpretation of s 135BB was erroneous as it did not pay sufficient credence to the beneficial purpose of s 135BB. Although the trial judge recognised the beneficial intent behind the provision, the applicant submitted her Honour was required to give effect to the most beneficial operation of s 135BB. The applicant pointed to the second reading speech for the legislation in which the purpose of providing expedient processes for workers to claim damages were expressly discussed. The applicant submitted that it was noteworthy that there was no suggestion that there was any purpose to the amendments outside that beneficial purpose. According to the applicant, that purely beneficial context provided further support for the argument that the alternative construction of s 135BB submitted by the applicant was to be preferred.[11] In the context of a beneficial amendment, it was unlikely that the legislature intended that workers might have their causes of action rendered invalid if an order of leave nunc pro tunc was not made. If that were the intent, the applicant suggested that some indication of it would have been made in the second reading speech. The applicant further urged that the beneficial purpose behind the amendment indicated that s 135BB did not need to be interpreted in a manner consistent with the operation of s 135A but could be seen as an invitation to steer away from the strictures of that latter provision.
[11]Above at [27].

Third, the applicant submitted that the trial judge’s interpretation of the provision as preventing a proceeding being validly commenced until an order nunc pro tunc was made was ‘linguistically strained’. The applicant reiterated the judge’s observation that nunc pro tunc orders are usually made to validate procedural not substantive steps. This then inclined towards the order only affecting interim substantive steps a worker might take, rather than the commencement of the proceeding. The applicant went on to note that it was not disputed that s 135A precluded a proceeding from validly being commenced until all its requirements were met. However, the applicant said the language of s 135BB indicated a different regime was envisaged under that section.

The applicant took this Court through each subsection of the provisions to illustrate that s 135BB diluted the conditional extinguishment of rights that s 135A would ordinarily effect. Section 135BB removed the steps that are required before commencing proceedings. In particular, the applicant noted that s 135BB(2) provided that, where the section applied (pursuant to the criteria in s 135BB(1)), ‘the worker may, subject to compliance with the requirements of this section, bring proceedings’. This amounted to the conferral of a right to commence proceedings without having satisfied the requirements of s 135A. The applicant then noted that the only requirements of the section are, according to s 135BB(3), to make an application to an associate judge of the Supreme Court ‘within 30 days of the commencement of the proceedings’. The applicant emphasised that for 30 days after commencement nothing was required of a worker who had commenced proceedings and that a worker may take procedural steps during that period to advance the litigation.

The applicant went on to note that in s 1355B(3) there was no suggestion that any previous attempt to commence proceedings had been conditional. The applicant submitted the language of that subsection indicated quite the opposite: sub-s 3(a) requires an application for an order allowing leave for the worker to proceed nunc pro tunc. This use of the words ‘to proceed’ assumes a valid commencement of the litigation. It indicates, the applicant submitted, that the nunc pro tunc order is directed at validating interim procedural steps the worker may have taken.

Next, the applicant submitted that s 135BB does not contain any instruction that a proceeding must be struck out if an application under s 135BB(3) is not made. Sub-sections (4), (5) and (6) set out certain instances in which an associate judge should not make an order applied for and the consequences of this. However, none of these sub-sections contemplate an application not being made. If the consequence of no application being made was intended to be invalidating a proceeding, the applicant submitted that the legislature would have made this explicit.

Fourth, the applicant submitted that it was contrary to established principle to find that the nunc pro tunc order was intended to affect the worker’s substantive right to commence the proceeding. The applicant relied on Berowra Holdings Pty Ltd v Gordon,[12] which concerned a similar New South Wales provision designed to impose a bar on a claim for workers compensation. The applicant noted that in Berowra the High Court held that the relevant statutory provision created a procedural barrier but did not attack the validity of the underlying cause of action or prevent the court’s jurisdiction from being enlivened. The applicant submitted a similar approach was applicable to Mr Perakis.
[12](2006) 225 CLR 364 (‘Berowra’).

The respondent’s submissions

The respondent’s overarching submission was that, although s 135BB provided a beneficial alternative to s 135A, any proceeding which attempted to engage s 135BB nonetheless started under the default operation of s 135A. That is, where a claim is brought for compensation, s 135A was the governing provision until it was shown that s 135BB applied to give the benefit of its exceptions.

Because the applicant had not fulfilled the relevant requirements of s 135BB, the provision had not been engaged and the applicant’s cause of action was invalid as it had not met the requirements in s 135A.

The respondent submitted that the case of Berowra, relied on by the applicant, was distinguishable from this case. According to the respondent, the provision in dispute in Berowra was not intended to impose a jurisdictional bar on the bringing of compensation claims but created a defence to such claims. The Berowra provision allowed claims to be struck out if certain steps were not taken but it did not render the claim invalid until the step was taken. In contrast, s 135A and by consequence s 135BB were intended to be jurisdictional bars which prevented a cause of action from coming into existence until they were satisfied.

The respondent pointed to the following to make out this argument. The respondent noted that it was established, and the applicant had accepted, that s 135A imposed a jurisdictional bar on bringing a claim for compensation. That was settled definitively in the case of Swannell v Farmer,[13] building on the jurisprudence in the case of Wilson v Nattrass.[14] Those cases established that the provision (in an earlier form under the Transport Accident Act 1986) required certain events to occur before damages could be recovered and, until those events occurred, prevented any cause of action coming into existence.[15] Swannell also considered whether there was an inchoate or provisional cause of action that could survive for the benefit of the estate before the requirements were satisfied. The judgment resolved that until the requirements were satisfied there was not even ‘an incipient, undeveloped or immature cause of action’ and that ‘in any event, ...[no] undeveloped, incomplete cause of action can survive for the benefit of the deceased person’s estate’.[16] It is accepted that the principles established in Swannell apply to the operation of s 135A and a number of causes of action have been struck out on that basis.[17]
[13](1999) 1 VR 299 (‘Swannell’).
[14](1995) 21 MVR 41.
[15]Swannell (1999) 1 VR 299, 308 [28].
[16]Ibid 309 [32].
[17]See, eg, Victoria v Robertson (2000) 1 VR 465, 474 [26]; Quinlan v Catholic Regional College Sydenham [2015] VSC 463.

The respondent submitted that it was clear that s 135BB was intended to ameliorate the strict requirements of s 135A but that it was simply a less onerous version of the same model. The respondent said that s 135BB could not be disconnected from the balance of statutory provisions of which it forms a part. Therefore as s 135A imposed a jurisdictional bar, s 135BB did the same.

The respondent also submitted that its submission was buttressed by the language in s 135BB(3). The respondent submitted that the opening words of that sub-section referred to a worker who had ‘commence[d] proceedings’. The respondent suggested that that reference indicated that the section was linked back to the ‘commencement’ of proceedings so the order for leave to proceed nunc pro tunc was intended to validate that commencement process.

Grounds 2 to 4: That the learned judge trial judge erred in finding that no proceeding had been commenced, no cause of action survived for the benefit of Mr Perakis’ estate and no compliance was made with the requirements in circumstances when he had died before the statutorily imposed deadline of 30 days for an application had elapsed
The applicant’s submissions

On the appeal, the applicant submitted that Grounds 2 to 4 set out the consequences of its argument under Ground 1. That is, if the applicant’s construction of s 135BB was accepted, the applicant submitted that it would follow that Mr Perakis validly commenced a proceeding on 24 December 2013 when he filed the writ. At the time of his death, eight days later, a valid proceeding remained on foot as there had been no failure to comply with any of the requirements at that stage. Pursuant to s 29 of the Administration and Probate Act 1958, Mr Perakis’ cause of action survived for the benefit of his estate.

The applicant’s final submission under these grounds was to emphasise that the requirement to apply for an order under s 135BB(3) was imposed only on the ‘worker’. According to the applicant, this was a deliberate choice of words which recognised that such cases could involve practical steps that required the worker themselves to perform and which indicated that an estate, inheriting a cause of action after a worker’s death, would not need to comply with the same requirements. The result of those submissions would be that Mrs Perakis would be able to continue Mr Perakis’ claim for the benefit of his estate.

The respondent’s submissions

The respondent briefly submitted that, due to its primary submission that Mr Perakis simply had no cause of action until the requirements of s 135BB were satisfied, nothing survived for the benefit of Mr Perakis’ estate.

The respondent went on to submit that the estate could not have proceeded with Mr Perakis’ claim as there was no cause of action. When questioned by the Bench as to what, precisely, the respondent contended Mr Perakis had in the 30 days prior to any application being made, the respondent characterised it as an ‘inchoate right to apply under the statute’. This, the respondent suggested was not something that necessarily fell within s 29 of the Administration and Probate Act 1958 to survive for the benefit of Mr Perakis’ estate. The respondent submitted that it was arguable, given the cases of Sugden v Sugden,[18] Mathieson v Burton,[19] Abbott v Minister for Lands,[20] that where a person had a statutory right, as distinct from a common law cause of action, the relevant question regarding the survival of the right was whether the worker had done all he or she could to have taken advantage of that right. Here, having not made the application, the respondent suggested Mr Perakis did not do all he could to take advantage of the inchoate statutory right, so it could not survive for his estate. However, given the harshness of the consequences of its submission, the respondent said it was prepared to accept that perhaps the estate could inherit that inchoate right under s 29 of the Administration and Probate Act 1958 which it could have pursued had it made the relevant application for an order within 30 days. As it was, with no application made within the 30 day deadline by either Mr Perakis or the estate, the claim had to be struck out.
[18][1957] P 120.
[19](1971) 124 CLR 1.
[20][1895] AC 425.

Ground 5: That the learned trial judge erred in finding that the writ filed by Mr Perakis did not constitute an application under s 135BB(3)
The applicant’s submissions

Finally, the applicant advanced an alternative ground that the writ filed by Mr Perakis on 24 December 2013 constituted an application under s 135BB(3).[21] The applicant highlighted that proceedings in asbestos-related matters were occasionally issued in interstate courts. In such cases, courts in those states or territories without associate judges would be called upon to apply these provisions. Without associate judges, an application could not be made in accordance with the precise terms of s 135BB(3). The applicant urged that there must be a flexible and adaptive approach with applications under s 135BB(3). The applicant submitted that Mr Perakis’ writ, which referred to s 135BB(3), was only an alternative way of satisfying the requirement for an application.
[21]Accident Compensation Act 1985 sub-s 135BB(3)(a).

The respondent’s submissions

The respondent simply submitted that the trial judge was correct in her analysis in finding that s 135BB contemplated a separate action for the purposes of an application for an order and in finding that the writ filed by Mr Perakis on 24 December 2013 contained no indication it was an application designed to be brought to an associate judge’s attention. It could not be construed as the required application.

Analysis

The key question in the appeal is whether the trial judge’s interpretation of s 135BB was in error. Does s 135BB impose a jurisdictional bar on bringing proceedings akin to that in s 135A which prevents the validity of a claim until all its requirements are satisfied?

It is relevant to consider the analysis engaged in the authorities Swannell[22] and Berowra[23] as both concerned similar provisions.
[22][1999] 1 VR 299.
[23](2006) 225 CLR 364.

Swannell was concerned with injuries suffered by Mr John Farmer in 1989. He had suffered a number of orthopaedic injuries in a transport accident in December of 1989, and died of unrelated causes in 1994. Prior to his death, Mr Farmer had not taken any steps to establish he had suffered a ‘serious injury’ within the meaning of s 93(17) of the Transport Accident Act 1986. The administrator of his estate was given leave by a County Court judge to commence common law proceedings regarding these injuries, after the judge found that Mr Farmer had died with a cause of action in negligence vested in him. The defendant successfully appealed to this Court.

In Swannell, the relevant provision, s 93 of the Transport Accident Act 1986 was as follows:

(1)A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.
(2)A person who is injured as a result of a transport accident may recover damages in respect of the injury if —
(a)the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and

(b) the injury is a serious injury.

(3) If —
(a)under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and

(b) the degree so determined is 30 per centum or more —
the injury is deemed to be a serious injury within the meaning of this section.

(4) If —
(a)under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and

(b)       the degree so determined is less than 30 per centum —
the person may not bring proceedings for the recovery of damages in respect of the injury unless —
(c)       the Commission —
(i)        is satisfied that the injury is a serious injury; and
(ii)issues to the person a certificate in writing consenting to the bringing of the proceedings; or

(d)a court, on the application of the person, gives leave to bring the proceedings.

(5)A copy of an application under sub-section (4)(d) must be served on the Commission and on each person against whom the applicant claims to have a cause of action.
(6)A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.

The Court in Swannell observed,[24] citing Wilson v Nattrass,[25] that the subject common law right of action was ‘extinguished’ unless the condition or contingency in the relevant statute was satisfied.
[24]Ibid 372 [19].
[25](1995) 21 MVR 41.

The Court held that the cause of action in the case was the ‘product of common law, not the act’.[26] The Court held that no damages could be recovered unless the requirements of the statute were met.[27]
[26][1999] 1 VR 299, 307 [22].
[27]Ibid.

Berowra was considered some seven years after Swannell. In Berowra,[28] the relevant provisions were ss 151 and 151C of the Workers Compensation Act 1987 (NSW) which respectively provided as follows:
[28](2006) 225 CLR 364.

This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.
…
(1)A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.

(2)Despite subsection (1), the person is entitled to commence court proceedings against the employer if either of the following occurs:
(a) the employer denies all liability in respect of the injury;
(b)the employer admits partial liability in respect of the injury but the person is dissatisfied with the extent to which liability is admitted.

In Berowra the statute did not affect the liability of the employer except that the claimant was not entitled to commence proceedings until a certain event: the elapse of six months since notice of the injury unless the employer denied all liability or admitted partial liability but the person was dissatisfied with the extent of the admission.

In 2001, a worker commenced proceedings claiming common law damages for an injury sustained during his employment. Notice was given to the employer on 12 October 2001. The employer admitted liability in its entirety — accordingly, on its terms s 151C operated so that the proceedings could not in fact be commenced before 12 April 2002. Nonetheless, the parties continued to take steps in the proceedings, and the employer’s solicitors did not refer to s 151C — until the day before the hearing was to commence.

The employer had made an offer of compromise which was required by the relevant court rules to remain open for acceptance for 28 days, unless the Court ordered it be withdrawn. Within the 28 day period, in reliance on s 151C, the employer’s solicitors gave notice that they would be seeking leave to withdraw the offer of compromise and an order for summary dismissal of the worker’s claim on the basis that the proceeding was a nullity. The offer was accepted by the worker the following day.

Subsequently a judge granted the employer leave to file an amended defence which raised and relied upon s 151C and withdraw the offer of compromise, and then dismissed the proceedings on the basis they were a nullity. On appeal by the worker, the Court of Appeal allowed the appeal and entered judgment for the worker on the terms of the offer of compromise.

On subsequent appeal to the High Court, the Court held that the provision should not be read as a pre-condition to the court’s jurisdiction to determine claims.[29] The Court held that the relevant section did not extinguish or create new rights but ‘postpones the remedy’.[30]
[29]Ibid 365.
[30]Ibid 376 [35].

The Court rejected the argument in Berowra that the proceeding was a nullity or invalid. The Court said:

There also is a very real difficulty in characterising proceedings as ‘invalid’. The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules.[31]

[31]Ibid 370 [13].

The Court emphasised that s 151C imposed ‘a form of restriction or bar upon the commencement of court proceedings’.[32] The Court went on to state:

[T]he scheme [of the Act] does not represent an instance of a statutorily created right which is subject to an inherent limitation or qualification going to the nature of the right…The right is sourced in common law. The approach of the courts has consistently been to require very clear legislative intent before treating a statutory provision as taking away common law rights of a plaintiff, where there is an alternative construction available.[33]

[32]Ibid 372 [19].

[33]Ibid 373 [23].

In conclusion on the statutory point, the Court held:

Section 151C should not be read as if the entitlement of a plaintiff to commence court proceedings after the passage of six months from the giving to the employer of notice of the injury was a pre-condition to the jurisdiction conferred upon the court to determine claims for work injury damages. The considerations adverted to earlier in these reasons all point against the employer’s construction of s 151C.
The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court’s jurisdiction or because the court has no jurisdiction except to accede to a defendant’s application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court.
The construction advanced by counsel for the worker should be accepted. Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The ‘right’ which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court.[34]

[34]Ibid 376 [33]–[35].

The differences between the statute in each of Swannell and Berowra are marked. In Swannell, s 93 of the Act prohibited recovery of damages except as provided in the Act. Ultimately the Court was required to decide whether the injury was ‘a serious injury’ before granting leave to bring proceedings.

In Berowra, s 151C postponed the remedy for the common law right to initiate proceedings. The ‘right’ conferred by the section was conferred on the employer.

In the present case, s 135A(1) prevented ‘a worker … entitled to compensation’ from bringing proceedings to recover damages except if certain requirements had been met (ss (1)(a)–(b)). Section 135BB(1) is concerned with circumstances where ‘a worker who may have an entitlement to recover damages … in respect of an injury that is an asbestos-related condition …’.

Section 135BB provides that if the section applies, compliance with s 135A is not required. In other words, under s 135A the common law right of the worker is accepted, or in the words of Berowra, the common law right is ‘postponed’ until an order is made by an associate judge pursuant to ss 135BB(3) and (4).

Of course, as already explained, here there is a hiatus because s 135BB is concerned with a living worker. In the circumstances I would not contemplate the rights of Mr Perakis being taken away where an alternative construction is available.

Even if that was not so, I would view the approach in Swannell as overtaken and inconsistent with the approach of the High Court in Berowra. As the Court said in that case, the preferred view is a facilitative construction rather than one of invalidation.[35]
[35]Ibid 376 [34].

The respondent sought to characterise the provision in Berowra as intending to impose a ‘defence’ rather than a jurisdictional bar. The distinction alleged between the section in dispute in Berowra and s 135BB is not persuasive. Both provisions place barriers in place of a worker being able to make a claim for compensation. Furthermore, the High Court’s analysis in Berowra stood in the face of the section explicitly preventing the commencement of proceedings until the notice requirement was satisfied. If anything, the language in s 135BB is more permissive as it does not prevent a worker commencing a proceeding; it notes that any proceeding had to be subject to the requirements of the section.

The reasoning applied by the High Court in respect of the provision in Berowra is applicable here. The jurisdiction of the Court to hear and determine a dispute after a step has been taken to commence a claim should not easily be construed to operate as an obstacle or barrier to the worker’s right to institute a proceeding. That is particularly so in this case given the permissive nature of s 135BB.

This conclusion is impelled by the language employed throughout s 135BB. The section, in contradistinction to s 135A, provides that, where the section applies, a worker may commence proceedings, subject to the section’s requirements.[36] The section is clearly providing an alternative to the circumstance contemplated by s 135A. In s 135A, the language throughout evidences an attempt to prevent proceedings being brought unless certain requirements are satisfied: ‘a worker … shall not, in proceedings in respect of the injury, recover any damages’,[37] ‘a worker may not bring proceedings …’[38], and ‘a worker must not commence proceedings in accordance with this section …’.[39]
[36]Accident Compensation Act 1985 s 135BB(2).
[37]Ibid s 135A(1)(a), (b).
[38]Ibid s 135A(2A).
[39]Ibid s 135A(2DE).

There is a clear shift in statutory language in s 135BB signalling an intention by the legislature for the section to provide an alternative means through which a worker can exercise their common law cause of action. Rather than being extinguished by s 135A then, a worker who falls within the description of s 135BB(1) maintains their common law cause of action.

The requirement in s 135BB(3) to make an application for an order for leave to proceed nunc pro tunc within 30 days is properly construed pursuant to the applicant’s argument. The order does not provide retrospective leave for the valid commencement of the proceeding itself but rather validates the various procedural steps that the worker might have undertaken while pursuing their claim within the 30 days after commencing.

This interpretation is not only consistent with the beneficial purpose of the legislative amendment in inserting s 135BB but is also necessary for a coherent interpretation of the provision.

It means that there is something that can survive for the benefit of an estate when a worker has died before the expiry of 30 days at which point they were entirely in compliance with the requirements of the provision.

It also means that the order from the associate judge for leave to proceed nunc pro tunc itself is given the appropriate determinative weight. Under the respondent’s interpretation, s 135BB(3) required the worker to make an application. It was this requirement that the respondent said triggered the application of s 135BB(3). Put together, the suggestion was that after the worker simply applied for an order within 30 days, the worker would be entitled to the benefit of s 135BB and would be excused from the requirements of s 135A. This did not take into account the fact that it is the order itself given by the associate judge which was to be determinative of the worker having leave to proceed nunc pro tunc.

The better interpretation which favours the nunc pro tunc order being directed to any procedural steps taken after a proceeding has been validly commenced avoids this aberration. In this interpretation, a worker has a valid proceeding on foot if they commence proceedings and fall within the definition in s 135BB(1). Then, though the application for an order under s 135BB(3) is necessary and has a deadline to ensure the expedited nature of the arrangements, the application itself is not determinative of the validity of any of the steps. It returns the authority to the associate judge’s order in determining whether the interim procedural steps were validly undertaken.

Finally, I agree with the applicant’s submission that, there being no indication of an intention for drastic consequences upon the failure to make an application anywhere in s 135BB, it was not appropriate to infer it. This is particularly so in light of sub-ss (4), (5), and (6) setting out other consequences relating to the refusal to grant orders.

In summary, s 135BB liberates a worker from the strictures of s 135A and allows their common law right of action to survive without being extinguished by the requirements of s 135A. It is clear from the face of the provision that it is intended to provide a simpler method for a worker to give effect to their common law rights. This is consistent with the beneficial purpose of the provision.

Given the foregoing, when Mr Perakis died on 1 January 2014 he had a valid cause of action. This survived for the benefit of his estate pursuant to s 29 of the Administration and Probate Act 1958.

One must now turn to confront the fact that Mr Perakis’ estate did not apply for the order under s 135BB(3) within 30 days after he commenced the proceeding.

I agree with the applicant’s submission that the requirement under s 135BB(3) to apply for an order is imposed only on the worker and does not apply to an estate which inherits a worker’s cause of action. The reason for this is the singular use of the word ‘worker’ in that sub-section which indicates that the obligation is directed solely at the worker. That use of language is to be contrasted to preceding provisions in the Act which recognise distinctions in responsibilities on a worker compared to those who might be representing a worker who has died midway through a proceeding.[40] At the very least, it is ambiguous as to whether the requirement is designed to apply to a deceased worker’s estate. In that case, a beneficial approach to the interpretation of the provision favours the conclusion that it is only the worker who had to make such an application.
[40]Ibid s 135BBA.

Most importantly, the reason for the requirement to apply for an order is to allow an associate justice to be satisfied that a worker does suffer from an injury related to an asbestos-related condition.[41] The section then provides that a worker is not entitled to recover damages unless the worker can establish that they have a serious injury.[42] However, where a worker dies from an asbestos-related condition prior to the hearing of the proceeding, a serious injury is deemed to be established.[43] This indicates that the scrutinising process envisaged by the requirement for an application for an order under s 135BB(3) to establish a serious injury related to an asbestos-related condition is nullified when the worker has died before the hearing. As such, there is no need for the estate to make the application to satisfy those steps as any such requirements could be established at the trial itself.
[41]Ibid s 135BB(4).
[42]Ibid s 135BB(6).
[43]Ibid s 135BB(7).

Given the above, there is no need to turn to the applicant’s final alternative ground suggesting the writ itself constituted an application for the purposes of s 135BB. However, I would not consider the writ to be an adequate application for the purposes of that section as it plainly contained no intention to be construed as that application or anything that would bring it to an associate judge’s attention.

Conclusion

The construction of s 135BB I have adopted is consistent with the beneficial purposes of that provision. The section prevents a worker who seeks to launch a common law claim for damages relating to an asbestos-related condition from having that cause of action extinguished by s 135A. The requirement to apply for an order for leave to proceed nunc pro tunc under s 135BB(3) relates to a need for the worker to retrospectively validate any interim procedural measures they have taken. The requirement does not, however, impose a jurisdictional bar preventing the worker’s claim from having been validly commenced.

In this case, as Mr Perakis died only eight days after having commenced the proceeding, the cause of action existed with no impediment to survival for the benefit of his estate.

The estate was not required to take any further step to maintain the claim as the requirement to apply for an order under s 135BB(3) applied solely to the worker. The claim should not have been struck out.

OSBORN JA

KAYE JA:

We gratefully adopt the summary of the facts, and the relevant statutory provisions, contained in the reasons of the Chief Justice. For the following reasons, we agree with her Honour that the application for leave to appeal should be granted, and the appeal be allowed.

In effect, the submissions made by the applicant are based on four necessary propositions, namely:

(1)At the time of his death Mr Perakis had a valid proceeding on foot in the Supreme Court.
(2)That proceeding was based on a cause of action in negligence (and, possibly, breach of statutory duty) claiming damages which, under s 29(1) of the Administration & Probate Act, survived his death for the benefit of his estate.
(3)The fact that Mr Perakis had not, at the time of his death (nine days after the issue of proceedings) made an application under s 135BB(3) of the Act did not invalidate or nullify the proceeding or the cause of action on which it was based.
(4)(a) Upon and after the death of Mr Perakis, his estate (and its representatives) was not required to make any application under sub-s (3), as that obligation was only cast, by that sub-section, on the worker, and not on his or her estate or legal representatives.

(b)Alternatively to (a), the general indorsed writ in this case constituted such an application under sub-s (3).

Before dealing with each of those four steps, it is convenient first to note two propositions which were not in issue in the appeal.

First, it is well established that the effect of s 135A(1) and s 134AB(1) of the Accident Compensation Act is to extinguish the common law rights of an injured worker to claim damages for injury sustained in the course of employment, subject to the worker satisfying the requirements of those provisions entitling the worker to issue proceedings based on those rights. In other words, the effect of those two provisions is to conditionally extinguish the common law rights of the worker to claim damages for injury sustained in the course of employment.[44]
[44]Wilson v Nattrass (1995) 21 MVR 41, (Brooking J), 54 (Ashley J), 59 (Hedigan J); Swannell v Farmer [1999] 1 VR 299, 307 [22] (Batt and Buchanan JJA); State of Victoria v Robertson (2000) 1 VR 465, 466 [1] (Callaway JA), 474 [26] (Hansen AJA).

The second proposition, relevant to the appeal, is that s 135BB was intended to operate, and does operate, as a beneficial provision, ameliorating the effect of the stringent provisions prescribed in s 135A and s 134AB, which, in the case of persons suffering asbestos related injuries, would operate in an unjust manner. The beneficial effect and purpose of the provisions is evident, both from the Second Reading Speech, and from the text of the provisions in the context of the Accident Compensation Act. It follows that, in the case of any ambiguity in any of the provisions under consideration, the Court should prefer the construction which more effectively advances the beneficial purpose of the provisions.

Taking those propositions into account, we turn to the steps contained in the submissions made by the appellant. The first step, in the appellant’s argument, is not in issue. Senior counsel for the respondent (correctly) accepted that, at the time of his death, Mr Perakis had on foot a valid and effective proceeding in the Supreme Court. However, the area of dispute concerns the second step in the applicant’s argument. The applicant contended that the valid proceeding, which Mr Perakis had on foot at the time of his death, was based on a common law cause of action, or causes of action, for damages. On the other hand, the respondent contended that it was not based on those causes of action, but, in effect, the proceeding was based on the statutory right of the applicant to make an application under sub-s (3) which, if successful, would have entitled the applicant to proceed in the action based on such causes of action. In other words, the respondent’s submission is that, at the time of his death, Mr Perakis had a right to commence a proceeding, but he did not have a cause of action for damages.

The applicant’s submissions are to be preferred. Section 135BB(1) applies, by its terms, to a worker who may have an entitlement to claim damages in respect of an asbestos related condition arising out of or in the cause of or due to the nature of his or her employment. Sub-section (2) expressly permits such a worker (subject to compliance with the requirements of the section) to bring proceedings in accordance with s 134AB or s 135A (as the case may be) without complying with the preliminary and other stringent requirements of those provisions. Those requirements, which do not apply to a worker coming under s 135BB, include those that require the worker to pass, in one manner or another, through what for shorthand purposes may be referred to as the ‘serious injury gateway’.

As mentioned, where the serious injury gateway provisions apply, they constitute steps that are necessary to re-enliven or resurrect the common law rights of the worker which have otherwise been conditionally extinguished by s 134AB and s 135A. Where, in such a case, the worker succeeds in passing through one or other of the prescribed gateways, the proceeding instituted by the worker under s 134AB or s 135A is based on the worker’s common law causes of action which have been re-enlivened or resurrected.

Thus, in Wilson v Nattrass, Hedigan J stated, in respect of the parallel provision contained in s 93(1) of the Transport Accident Act 1986:

In my opinion, the effect of s 93(1) is contingently to extinguish the right to recover common law damages for personal injuries in Victoria in respect of a transport accident, wherever occurring … The attainment or fulfilment of any one of the contingencies — conditions set out in s 93(2), (3) and (4) will enable the bringing of a proceeding for the recovery of common law damages … Once one of these criteria is fulfilled, the contingently extinguished right to bring common law proceedings springs into life … .[45]

[45](1995) 21 MVR 41, 59.

It is in that legal context that s 135BB(2) expressly provides that the ‘serious injury’ requirements, contained in s 134AB and s 135A, need not be complied with by the worker at the time at which the worker issues his or her proceeding. It follows, from the foregoing, that at the time at which Mr Perakis issued his proceeding, it was based on his re-enlivened common law rights to claim damages for his asbestos related condition arising out of in the course of or due to the nature of his employment. Contrary to the submission made on behalf of the respondent, the cause of action was not based on a right to bring an application under s 135BB(3); rather, Mr Perakis’s proceeding was based on the re-enlivened common law right of Mr Perakis to claim damages for his asbestos related condition. It follows that, upon Mr Perakis’s death, those causes of action, that were vested in him, survived for the benefit of his estate.

We also consider that the third step, contained in the appellant’s argument, is correct. The fact that Mr Perakis had not, at the time of his death, made an application under s 135BB(3) did not, at that time, nullify or invalidate the proceeding or the causes of action on which it was based. Mr Perakis died nine days after the issue of the proceeding. At that stage, the prescribed time limit, within which he was required to bring an application under sub-s (3), had not expired. Put simply, on 1 January 2014, Mr Perakis had a valid proceeding on foot. A conclusion, to the contrary, would not only require a re-writing of the section by the Court, but would be contrary to the beneficial intent of the provision. It is, tragically, not uncommon for proceedings, of the kind issued on behalf of Mr Perakis, to be commenced when the injured worker is very close to death, and when there is very little time remaining for an application to be made, on behalf of the worker, under sub-s (3). A conclusion that if, at the time of death, the worker had not issued an application under sub-s (3), his or her proceeding failed, would be inconsistent with, and contrary to, the ameliorative intent of Parliament in enacting s 135BB.

That conclusion is supported by the principle, referred to in the authorities cited by the primary judge, that ordinarily orders and judgments that are made ‘nunc pro tunc’ are directed to procedural, and not substantive, requirements and rights of parties.[46] In that respect, it is significant that sub-s (3)(a) of s 135BB is directed to the grant of leave to the worker to ‘proceed’ nunc pro tunc. By its terms, the section differentiates between, on the one hand, the ‘commencement of the proceedings’, and, on the other hand, the right of the worker to ‘proceed’ within those proceedings. Certainly, at the least, sub-s (3)(a) is ambiguous as to whether it is directed to validating the commencement of the proceeding, or providing regularity to procedures undertaken within the proceeding after its commencement. The intended beneficial operation of the section favours the latter construction of the leave requirement contained in sub-s (3)(a).
[46]See for eg, Hartley Poynton Limited v Ali (2005) 11 VR 568, 606–609 [73]–[80], 612–13 [91] (Ormiston JA).

A further consideration, weighing in favour of the construction contended for on behalf of the appellant in this regard, is that raised by senior counsel for the applicant in the course of reply submissions. In light of the aggressive, and unrelenting, nature of asbestos related conditions, it is not uncommon for procedures, in such proceedings, to be adapted and time requirements to be curtailed to enable such proceedings to be disposed of, sometimes with extraordinary expedition. It is by no means unknown for such proceedings, in the Trial Division of this Court, to have been disposed of within weeks of issue of the writ. In such a case, as senior counsel noted, it is quite conceivable that a verdict could be obtained, and judgment entered upon it, in a period shorter than 30 days after the commencement of the proceeding. It would be extraordinary if, nevertheless, such a proceeding were in some way invalid, or still subject to validation, because, during that foreshortened time frame, the worker had not made an application for leave, or obtained leave, under sub-s (3).

Pausing there, the effect of our acceptance of the first three steps contained in the applicant’s submissions is that, at the time of his death, Mr Perakis had on foot a valid proceeding based on the common law causes of action for damages, which survived his death for the benefit of his estate, and which was not, at the time of his death, invalidated or nullified by the circumstance that Mr Perakis had not issued an application under sub-s (3). The critical question is whether the writ, issued by Mr Perakis, can be sensibly construed as containing any such application, and, if not, whether, in any event, upon Mr Perakis’s death, sub-s (3) required his estate (or his representatives) to make an application under that provision.

In our view, the generally indorsed writ, issued on behalf of Mr Perakis, on its face plainly did not make, or contain, any application by him or on his behalf under s 135BB(3) of the Act. Paragraph 4 of the indorsement pleaded that the plaintiff brought the proceedings ‘on the basis of section 135BB of the Act … ‘. Even adopting the most liberal, and beneficial, construction of the sub-section (and the indorsement), it could not be properly concluded that the indorsement contained the requisite application. In short, there was nothing in the indorsement comprising an application to an associate justice of this Court for the two orders prescribed by s 135BB(3).

That conclusion leads to the final question, namely, whether, upon the death of Mr Perakis, his estate was required to make an application to an associate justice under sub-s (3) before the expiration of 30 days of the commencement of the proceeding, and, if the estate was required to make such an application, what is the effect of its failure to do so.

There are two reasons why the applicant is correct in submitting that sub-s (3) does not apply to Mr Perakis’s estate.

First, the sub-section, by its terms, is directed to the ‘worker’ who has instituted the proceeding, and not to the legal representatives of a deceased worker. The provisions contained in div 8A of pt 4 of the Act necessarily operate differently in respect of an injured worker, on the one hand, and in respect of an injured worker’s estate. As we have noted, in cases to which s 135BB does not apply, an injured worker must successfully navigate a ‘serious injury gateway’, in order to be able to issue proceedings, under s 135A (or s 134AB) claiming damages for an injury sustained in the course of or arising out of his or her employment. If a worker dies before passing through one of those gateways, the worker’s cause of action, at common law, remains conditionally extinguished, so that his or her estate is not entitled to make a serious injury application under s 135A (or s 134AB).[47] The harsh consequences, of that proposition, has, to some extent, been alleviated by s 134ABAA of the Act, which, in effect, provides that if a worker dies after making an application for leave under s 134AB(4) of the Act, and while that application is pending, the legal personal representative of the deceased worker is entitled to take the same action as the worker under the application. It is relevant that, in the context of the same suite of statutory provisions, s 134ABAA maintains the distinction between a worker and his or her legal representatives. In that context, sub-s (3) of s 135BB is ambiguous as to whether it was intended to apply to the legal personal representatives of a worker who has died, after the issue of proceedings under s 135BB. A beneficial approach to the construction of the provision would favour the view that that sub-section was not intended to require the estate, or legal personal representatives, of the worker, to make such an application.
[47]Swannell v Farmer [1999] 1 VR 299, 310 [35] (Batt and Buchanan JJA).

Secondly, the scheme, established by s 135BB, supports the view that sub-s (3) does not apply to a deceased worker’s estate. If a worker makes an application under sub-s (3), sub-s (4) provides that the associate judge must not make the orders referred to in sub-s (3), unless the associate judge is satisfied, on the balance of probabilities, that the injury, which is the subject to the proceeding, is an asbestos related condition. If the associate judge is so satisfied, and grants the orders referred to in sub-s (3), sub-s (6) provides, in effect, that the worker at trial may only recover damages if the worker establishes that he or she has a serious injury. Sub-section (7) provides that if the worker dies from the ‘asbestos related condition’ before the hearing of the proceeding, then it is established, for the purposes of sub-s (6), that the worker had such a serious injury. Thus, in such a case, where the worker dies before the hearing of the proceeding, the section contemplates that the stage, at which it is necessary to prove, on the balance of probabilities, that the injury is an asbestos related condition, is at trial, and not at the earlier preliminary stage otherwise contemplated under sub-s (3) where the worker is alive.

In that way, s 135BB contains a cohesive scheme. If the worker is alive, he or she must make an application under sub-s (3), at which stage the worker is required to establish, on the balance of probabilities, that the injury complained of is an asbestos related condition. However, if the worker dies before the hearing of the proceeding, the worker’s estate must establish, at trial, that it was an asbestos related condition, so as to establish, for the purposes of sub-s (6), that the worker had the requisite serious injury.

That analysis, of the scheme provided for under s 135BB, militates in favour of the submission made on behalf of the appellant, namely, that sub-s (3) only imposes on the worker, and not on the worker’s estate, a requirement to issue an application under sub-s (3).

In those circumstances, and again applying a beneficial construction of the provision in question, we consider that the submissions made on behalf of the applicant are correct, namely, that the estate of Mr Perakis was not required, under sub-s (3) of s 135BB, to apply for or obtain leave from an associate justice. It follows that the proceeding in this case is valid.

That conclusion does not ignore, or fail to take into account, the respondent’s contention that s 135BB must be construed in the context of s 135A (and s 134AB). On the contrary, it is clear that s 135BB has been introduced into the legislation to address the reality that, in many cases, workers suffering from asbestos related conditions are not in a position to meaningfully comply with the pre-requisites to issuing proceedings under s 135A (or s 134AB). Section 135BB specifically entitles such a worker — subject to compliance with the requirements of the section — to bring proceedings in accordance with those sections, without complying with those requirements. In particular, as we have noted, it enables the worker to access the common law rights, available to a worker under s 135A (or s 134AB) who has passed through the necessary serious injury gateway, without being required to fulfil that condition precedent before issuing proceedings based on such rights. At the time of his death, Mr Perakis had complied with the prescribed requirements contained in s 135BB, as he still had 21 days within which to issue an application under sub-s (3). For the reasons we have stated, on a proper consideration of s 135BB, after his death, Mr Perakis’s estate was not required to comply with that requirement. Pursuant to sub-s (7), if the estate is able to demonstrate at trial that Mr Perakis died from the asbestos related condition which is the subject of the proceeding, the requirement, that it establish that Mr Perakis had a serious injury, will have been satisfied.

For those reasons, the application for leave to appeal should be granted, and the appeal allowed.

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[2017] VSCA 265

22 September 2017