Pinnacle Services Pty Ltd v Downsborough
[2005] WASCA 142
•5 AUGUST 2005
PINNACLE SERVICES PTY LTD -v- DOWNSBOROUGH [2005] WASCA 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 142 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:174/2004 | 14 JUNE 2005 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 5/08/05 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | PINNACLE SERVICES PTY LTD JOHN FREDERICK DOWNSBOROUGH |
Catchwords: | Workers' compensation Lump sum redemption Memorandum of Agreement pursuant to s 67 and s 76 Workers' Compensation and Injury Management Act 1981 (WA) not set aside Whether leave should have been granted to respondent to pursue common law damages Future pecuniary loss |
Legislation: | Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 5, s 6 Workers' Compensation and Injury Management Act 1981 (WA), s 67, s 76, s 93D, s 93E(13) |
Case References: | Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161 Henderson v KCut Pty Ltd [2004] WADC 13 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 Abbott v The Minister for Lands [1895] AC 425 Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641 Lend Lease Employer Systems Ltd v Lydon, unreported; SCt of WA; Library No 980088; 27 February 1998 Major Motors v Short [2004] WADC 164 Mayne v Mayne Nickless Ltd, unreported; SCt of WA; Library No 960223; 14 December 1995 Murcia & Associates (a firm) v Grey (2001) 25 WAR 209 Sampson v Industrial Progress Corporation Pty Ltd, unreported; SCt of WA; Library No 970058; 21 February 1997 SGRO v New Cement Co Pty Ltd, 15 SR(WA) 44 Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PINNACLE SERVICES PTY LTD -v- DOWNSBOROUGH [2005] WASCA 142 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
JOHN FREDERICK DOWNSBOROUGH
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
Citation : [2004] WADC 197
Catchwords:
Workers' compensation - Lump sum redemption - Memorandum of Agreement pursuant to s 67 and s 76 Workers' Compensation and Injury Management Act 1981 (WA) not set aside - Whether leave should have been granted to respondent to pursue common law damages - Future pecuniary loss
(Page 2)
Legislation:
Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 5, s 6
Workers' Compensation and Injury Management Act 1981 (WA), s 67, s 76, s 93D, s 93E(13)
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr P E Jarman & Mr G W Nutt
Respondent : No appearance
Solicitors:
Appellant : Jarman McKenna
Respondent : No appearance
Case(s) referred to in judgment(s):
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161
Henderson v KCut Pty Ltd [2004] WADC 13
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73
Case(s) also cited:
Abbott v The Minister for Lands [1895] AC 425
Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641
Lend Lease Employer Systems Ltd v Lydon, unreported; SCt of WA; Library No 980088; 27 February 1998
(Page 3)
Major Motors v Short [2004] WADC 164
Mayne v Mayne Nickless Ltd, unreported; SCt of WA; Library No 960223; 14 December 1995
Murcia & Associates (a firm) v Grey (2001) 25 WAR 209
Sampson v Industrial Progress Corporation Pty Ltd, unreported; SCt of WA; Library No 970058; 21 February 1997
SGRO v New Cement Co Pty Ltd, 15 SR(WA) 44
Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1
(Page 4)
1 STEYTLER P: I agree with the judgment of Pullin JA and with the orders proposed by him.
2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
3 PULLIN JA: This is an appeal by the appellant against the judgment of Martino DCJ dated 29 September 2004. His Honour dismissed an appeal by the appellant against an order granting the respondent leave to commence an action against the appellant for common law damages.
4 The leave was granted by Registrar Christo on 1 June 2004 pursuant to s 93D of the Workers' Compensation and Injury Management Act 1981 (WA) (the "Act") as it existed before 5 October 1999 (when the Act was referred to as the Workers' Compensation and Rehabilitation Act1981). 5 October 1999 was the date when the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) (the "1999 Act") came into effect which substituted "amended provisions" including a new s 93D in place of the "former provisions".
5 The respondent injured his back on or about 2 June 1998 in the course of his employment with the appellant. He then suffered aggravation to his back injury while at work and he ceased work in August 1999.
6 Martino DCJ said he was satisfied, on the evidence before him, that it was likely that the respondent would establish that he had no retained earning capacity. The respondent had sworn an affidavit that had he not been injured, he believed he would have been able to work to age 70 and that he had no plans to retire early. The appellant disputed this, but the appellant, which is the employer of tour coach drivers, did not produce any evidence to show that its workers did not work past age 65. His Honour said that he was satisfied that it was likely that the respondent would have worked to age 70.
7 Section 93D of the former provisions provided that proceedings for damages were not to be commenced without the leave of the District Court. Leave was to be given if the court determined that the worker was likely to have a future pecuniary loss resulting from the disability that was an amount that was at least equal to the prescribed amount. His Honour concluded that the future pecuniary loss from the respondent's disability was likely to exceed the prescribed amount.
(Page 5)
8 His Honour also considered the effect of an agreement headed "Memorandum of Agreement (Section 76 & 67(2))" dated 29 February 2000 ("Agreement"). The Agreement contained a provision reading:
"Upon the Agreement being recorded pursuant to Section 76 of the Workers' Compensation and Rehabilitation Act 1981 ('the Act') the worker's claims referred to in this Agreement are finalised and the employer shall pay to the worker and the worker shall accept, the lump sum of $60,000 upon the terms and conditions set out in the following".
9 The Agreement set out the date of the disability which corresponds with that set out above and stated that the disability occurred by "a personal injury by accident arising out of or in the course of the employment, or whilst the worker was acting under the employer's instructions". The Memorandum of Agreement concluded with a cl 8 which read:
"The worker hereby releases and forever discharges the employer from all claims and demands which the worker now has or, but for the execution of this Agreement, could or might have had against the employer under the Act in any respect to the disability to the worker referred to in this Agreement."
10 Section 67(1) of the Workers' Compensation and Injury Management Act 1981 provides that the liability for incapacity resulting from a disability was to be redeemed by the payment of a lump sum if:
"(a) the worker and the employer agree to the redemption and on the amount of the lump sum; and
(b) a memorandum of the agreement is registered under Division 7."
11 Section 76(1) is in Div 7 of the Act (and has not been materially amended) and it provides that where an agreement has been entered into whereby a worker agrees to compound any claim or right to compensation under the Act:
"… a memorandum thereof shall be sent, in manner prescribed, by any party interested, to the Director, who, subject to subsection 2(a), shall, on being satisfied as to its genuineness, and … as to the adequacy of the amount thereof, record such memorandum in a special register … and thereupon the
(Page 6)
- memorandum shall for all purposes be enforceable as an award or order made by the Directorate."
12 Regulation 12(3a) reads:
"A memorandum of an agreement lodged for the purposes of a redemption amount under section 67(1) shall be accompanied by Form 15D in Appendix 1 signed and dated by the worker, as acknowledgement that he/she is aware of the consequences of the recording of the memorandum."
13 Before referring to the content of Form 15D I should refer to s 93E(13) which was inserted into the Actby the 1999 Act and which provides that:
"If the liability for an incapacity resulting from the disability has been redeemed under section 67, damages are not to be awarded in respect of the disability."
14 Form 15D is headed "Statement of the Consequences of the Recording of a Memorandum of Agreement (Section 76(2)(a))" and it reads:
"In making an agreement for the purposes of section 67(1) of the Workers Compensation and Injury Management Act 1981 ('the Act') and upon that agreement being recorded under section 76 of the Act the following will apply;
…
(5) the worker forfeits any entitlement he/she may have to pursue common law damages under section 93D of the Act, in respect of the injury referred to in the agreement. That is, in general terms, the worker forfeits any entitlement they have to sue their employer for civil damages."
15 In this case a Form 15D memorandum was prepared. It was signed by the respondent. It contained the statement set out above and it ended with a statement of confirmation reading:
"I [respondent's name] confirm that I have read the above information and I acknowledge that I am aware of the consequences of the recording of a memorandum under section 67(1) of the Act."
(Page 7)
- I assume that the memorandum was then registered.
16 Martino DCJ noted in his reasons that s 93E(13) was inserted by the 1999 Act and then said (at [9]):
"Whether that amendment applies to the plaintiff's claim following Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428 is yet to be determined. Even if it does not the terms of the memorandum of agreement may have compromised the plaintiff's cause of action. The defendant contends that the plaintiff is estopped from pursuing his claim for damages and that it is an abuse of process for him to commence common law proceedings when he is not entitled to an award of damages. The plaintiff contends that there was a common mistake as to the plaintiff's rights and that he is entitled to have the agreement set aside: Solle v Butcher [1951] 1 KB 671."
17 The "defendant's contention" was that s 93E(13) applied and made the proceedings an abuse of process. His Honour said that he was not satisfied that the defendant had established that the cause of action, or the action in which damages were claimed, were an abuse of process. He said that the case was to be distinguished from Major Motors Pty Ltd v Short [2004] WADC 164 in which case there had been a judgment entered. His Honour said that this destroyed the existence of the cause of action so long as the judgment stood. He said no such judgment had been entered in this case and he therefore concluded that the respondent was entitled to have leave under s 93D and he dismissed the appeal against the Registrar's decision (who had reached a similar conclusion).
18 To complete the chronology of events I should at this stage mention that after his Honour's decision, the Workers' Compensation (Common Law Proceedings) Act 2004 (WA) ("Common Law Proceeding Act") was assented to and came into effect on the 25 October 2004 (save for s 5(1) and (2) which had retrospective effect and came into operation on 5 October 1999). It contained two sections of relevance to this dispute. They are s 5 and s 6. Section 5 reads:
"(1) This section -
(a) is to be read in conjunction with section 32 of the 1999 Act as if this section were incorporated with and formed part of that section; and
(Page 8)
- (b) applies in addition to section 32(7) of the 1999 Act.
- (2) Despite section 37 of the Interpretation Act 1984 and any other law, written or unwritten but except as otherwise stated in subsection (3) or in the amended provisions -
(a) the amended provisions apply to, and affect the awarding of damages in, a proceeding; and
(b) the former provisions do not apply to, or affect the awarding of damages in, a proceeding,
unless it is a proceeding -
(c) commenced before the assent day;or
(d) for the commencement of which a court gave leave under the former provisions before the assent day.
(3) Despite subsection (2), section 37 of the Interpretation Act 1984 and any other law, written or unwritten, but except as otherwise stated in section 6(4) -
(a) the amended provisions do not apply to, or affect the awarding of damages in, a proceeding; and
(b) the former provisions apply to, and affect the awarding of damages in, a proceeding,
that is a proceeding -
(c) commenced on or before the day on which this Act receives the Royal Assent with the leave of a court under the former provisions;or
(d) for the commencement of which a court gave leave under the former provisions on or before the day on which this Act receives the Royal Assent or on District Court file number WC 93D 1194/1998."
(Page 9)
- have the same meaning as in s 32(6) of the 1999 Act. In the latter section the phrase was defined to mean Pt IV Div 2 of the Act before it was amended by s 32 of the 1999 Act.
20 Section 6 reads:
"(1) In this section -
'determination' includes a decision, ruling, order, award, judgment, settlement or agreement but does not include a determination in respect of a proceeding referred to in section 5(2)(c) or (d).
(2) Where a determination was given, made or registered after the assent day on the basis that the amended provisions, and not the former provisions, applied, the fact that the determination was given, made, or registered on that basis is not a reason for -
(a) the determination to be rescinded, set aside, altered or amended;
(b) the determination to be subject to appeal, review or challenge in any way;or
(c) the worker to be entitled to any further payment under the provisions of the Workers' Compensation and Injury Management Act 1981 or any other law, written or unwritten.
(3) No determination given, made, or registered after the assent day is invalid or less effective by reason that it was given, made or registered on the basis that the amended provisions, and not the former provisions, applied.
(4) Section 5(3) does not apply if the cause of action to which a proceeding relates is the subject of an award of damages, settlement or agreement to which subsections (2) and (3) apply."
Grounds of appeal
21 The appellant appeals on the following grounds:
(Page 10)
- (a) leave should not have been granted because there was no application for leave pending in the District Court on 5 October 1999 when the former provisions were repealed and nor was there any action commenced on that day and therefore the reasoning in Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161 did not apply (ground 1);
(b) leave should not have been granted because the respondent was not likely to have a future pecuniary loss at least equal to the prescribed amount, this because there was no evidence that the respondent was likely to work until 70 (ground 2);
(c) leave should not have been granted by reason of the existence of the redemption Agreement and s 93E(13) of the Act which had the effect that damages could not have been awarded with the result that any action would have been an abuse of process (ground 3);
(d) since the judgment of Martino DCJ, s 6 of the Common Law Proceedings Act has been passed which provides that the redemption Agreement cannot be set aside (ground 4).
22 I will deal with the grounds of appeal in reverse order.
Grounds 3 and 4 - Memorandum of Agreement - Section 93E(13) of the Act
23 In my opinion these grounds must succeed for two reasons.
24 First, even if the Common Law Proceedings Act had not been passed, the Memorandum of Agreement had not been set aside when the matter was before his Honour. His Honour says that the respondent contended that there was a common mistake as to the plaintiff's rights and that he was entitled to have the agreement set aside. There was no information or evidence before the court to support that contention. The respondent's contention seems to have been that the parties proceeded to sign the Agreement on the assumption that the "amended" provisions and not the "former" applied as from 5 October 1999 and on that assumption the parties thought that leave could not any longer be granted by the District Court. After the parties executed the Agreement and it was registered, the High Court handed down its decision in Dossett on 4 December 2003 which had the effect that certain applications for leave pending on 5 October 1999 when the 1999 Act came into force were held to be preserved by s 37 of the Interpretation Act. After Dossett a series of District Court decisions beginning with Henderson v KCut Pty Ltd [2004] WADC 13 (which I will call the "Dossett Extension Cases") held that even if an application for leave was not pending on 5 October 1999, the District Court could still grant leave to sue for common law damages in
(Page 11)
- respect of workplace accidents which occurred before 5 October 1999. The respondent argued before his Honour that the parties to the Agreement were not aware of the law revealed by these cases, and were therefore labouring under the mistaken opinion that the District Court lost all authority to grant leave on 5 October 1999. However, there was no evidence about the mistaken belief of the parties. It cannot be assumed that the parties were labouring under a common mistaken unless there was evidence to that effect and there was none.
25 In any event there has not been a decree setting aside the Memorandum of Agreement; indeed no suit had even been instituted to seek such relief. A claimed "entitlement" by one party to an agreement (taking effect as a determination for the purposes of the Act) that there was a common mistake and that the agreement should be set aside has no effect on the agreement. It must be observed until it is set aside by a decree.
26 Section 93E(13) is clear in its terms. It says that if the liability for an incapacity resulting from the disability has been redeemed under s 67, then damages are not to be awarded in respect of a disability. The liability had been redeemed. So if s 93E(13) applies, then that was the end of the matter; damages could not be awarded; proceedings were therefore futile; leave should not have been granted; the appeal should have been allowed.
27 The second reason for upholding these grounds of appeal is because of the effect of the Common Law Proceedings Act. This Act received assent after Martino DCJ delivered his judgment. This is an appeal by way of rehearing so changes in the law after the judgment under appeal can be taken into account. See Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 105 - 108 per Dixon J; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
28 The Common Law Proceedings Act contained retrospective provisions to negative the effect of Dossett. See s 5(1) and (2) (the "anti-Dossett provisions"). Those provisions apply the "amended provisions", which means that s 93E(13) applies. The Common Law Proceedings Act also preserved the effectiveness of a grant of leave made before 25 October 2004 (thereby recognising the fact that the Dossett Extension Cases had been followed up until then) (s 5(3)). If no other provisions were referred to s 5(3) would seem to apply in this case to save the grant of leave. However, in s 6(4) it is provided that the s 5(3) was not to apply in certain circumstances and those circumstances exist here.
(Page 12)
- They exist because the Agreement is a "determination" as defined in s 6(1).
29 Furthermore, s 6(3) defeats the argument which was relied on to prove common mistake. This is because the mistaken opinion or belief of the parties when they signed the Agreement - that the "amended provisions" and not the "former provisions" applied - is not a reason for setting aside the Agreement.
30 Grounds 3 and 4 must therefore be upheld.
Ground 2
31 The gravamen of this ground is that the appellant contends that it was a "self-serving assertion" by the respondent that he would have worked until age 70 and had no plan to retire early. The appellant submits that his Honour "effectively placed an onus on the appellant to negative evidence that was of no probative value".
32 It is not necessary to decide this ground in view of my decision on grounds 3 and 4 but it is a short and uncontroversial point and so I will express my opinion about it. In my opinion the statement by the respondent (who was 61 years old) that he would have been able to work until 70 and had no plan to retire early was evidence, not a mere assertion. Evidence of the respondent's intention was admissible evidence and there was no evidence to counter it. Thus, this ground has no merit.
Ground 1
33 It is not necessary to deal with this ground.
Orders to be made
34 The appeal against Martino DCJ's judgment must be allowed. His judgment must be quashed and in lieu there should be judgment allowing the appeal and quashing the order of Registrar Christo made on 1 June 2004. Registrar Christo's order granting leave to the respondent pursuant to 93D of the Workers' Compensation and Injury Management Act 1981 should be quashed and the application for leave should be dismissed.
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10
2