Quinlan v Catholic Regional College Sydenham
[2015] VSC 463
•9 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2013 05284
| LYNDA JOY QUINLAN | Plaintiff |
| v | |
| CATHOLIC REGIONAL COLLEGE SYDENHAM – ASSOCIATION OF CANONICAL ADMINISTRATORS – REV. FR. J. O’REILLY – CHAIR, REV. FR. B. GLASHEEN, REV. FR. F. SMITH, REV FR. M. TRAN, REV FR. N. BRADY, REV FR. F. CAVARRA, REV FR. C. PORTELLI, REV. FR. TOLLAN, REV FR. F. REDDY | Defendant |
---
JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 August 2015 |
DATE OF RULING: | 9 September 2015 |
CASE MAY BE CITED AS: | Quinlan v Catholic Regional College Sydenham |
MEDIUM NEUTRAL CITATION: | [2015] VSC 463 |
---
Accident compensation – Workers compensation – Serious injury – Preconditions for bringing proceeding – Non-compliance with preconditions – Failure to issue proceeding within prescribed time – Condition precedent to the valid institution of proceedings – Consent to issue proceeding out of time – Implied consent – Extinguishment of cause of action – Accident Compensation Act 1985 s 134AB(12), s 134AB(20A), s 138A.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Leung | Nowicki Carbone |
| For the Defendant | S O’Meara QC and M Hooper | Minter Ellison |
HER HONOUR:
Introduction
This is an application by Lynda Joy Quinlan, (‘the plaintiff’) for leave to commence proceedings pursuant to s 134AB of the Accident Compensation Act 1985 (Vic) (‘the ACA’). The proceedings were initially brought outside of the timeframe required under s 134AB(12). The plaintiff applied to have the application heard as a preliminary point pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’).
Background
The plaintiff allegedly sustained an injury during the course of her employment with Catholic Regional College Sydenham (‘the defendant’) as an audio visual technician. The plaintiff alleged that, while performing her work duties between 2007 and May 2011, she sustained a lower back and spine injury which subsequently led to an adjustment disorder, pain and stress, anxiety and depression. In particular, the plaintiff referred to two specific incidents on 18 April 2007 and 24 August 2010, which she alleged caused the injury.[1]
[1]Plaintiff’s Amended Statement of Claim dated 21 October 2014, 2 [3]-[4], 6-7 [12].
The plaintiff brought an action against the defendant for negligence and breach of the relevant occupational health and safety regulations, seeking general damages as well as damages for loss of earnings and earning capacity arising from an injury suffered during the course of her employment with the defendant.[2]
[2]Ibid 3-7 [8]-[12].
In its amended defence, the defendant pleads that the plaintiff failed to comply with the time limit in s 134AB(12)(e) of the ACA for the commencement of proceedings, amongst other things.[3] The plaintiff accepts that there was non-compliance with the time limit set out in s 134AB(12)(e).
[3]Defendant’s Amended Defence dated 7 August 2015, 4 [14]-[15].
Legislative provisions
Section 134AB of the ACA outlines a number of statutory procedures that must be followed by a worker, or the dependants of a worker, who may be entitled to compensation in respect of an injury arising out of, in the course of or due to the nature of employment on or after 20 October 1999 but before 1 July 2014.
Most relevantly to the present matter, s 134AB(12) provides that proceedings under s 134AB must not be commenced by a worker unless certain mandatory steps are followed. Those steps are that:
(a)the worker and the Authority or self-insurer hold, or begin, a conference within 21 days after the response date; and
(b)the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; and
(c)if the worker does not accept that statutory offer within 21 days after it is made, the worker, before the expiration of that period, makes a statutory counter offer in writing in settlement or compromise of the claim; and
(d)the Authority or the self-insurer does not accept that counter offer within 21 days after it is made; and
(e)the proceedings are commenced not earlier than 21 days, and not more than 51 days, after the counter offer is made or, if a counter offer is deemed to have been made under subsection (14), not more than 30 days after the day on which the counter offer is deemed to have been made.
If the above steps are not followed, s 134AB(20A) makes provision for the Authority to consent to proceedings being commenced in certain circumstances. The subsection provides:
If the Authority is satisfied that a worker is unable to commence proceedings in accordance with this section because of the operation of subsection (12), on the application of the worker the Authority may consent to the commencement of proceedings –
(a) either –
(ii) earlier than 21 days after the date the counter offer is made; or
(ii) later than 51 days, but no later than 81 days, after that date –
if the Authority is satisfied that the defence of the proceedings will not be prejudiced; or
(b)later than 81 days after the date the counter offer is made if the Authority is satisfied that the failure to comply with subsection (12) was not due to any fault or omission of the worker or the worker’s legal representative.
Section 138A of the ACA provides that a number of provisions, including s 134AB, contain matters that are substantive law and are not procedural in nature.
The procedure undertaken in the present case
A pre-litigation serious injury application pursuant to s 134AB of the ACA was served by the plaintiff on WorkCover (‘the Authority’) on 14 January 2013.[4]
[4]As stated in the Affidavit in Support of Martin Alan Gannoni dated 20 August 2015, [2], the serious injury application was received by the Authority on 16 January 2013.
Pursuant to s 134AB(7) of the ACA, the Authority accepted the application for both pain and suffering and economic loss by way of a letter served on the plaintiff’s solicitors on 9 May 2013. This date was accordingly defined as the ‘Determination Date’ for the purposes of s 134AB(37). Pursuant to the same subsection, the ‘Response Date’ was therefore 6 June 2013, being 28 days after the Determination Date.[5]
[5]Affidavit in Support of Martin Alan Gannoni dated 20 August 2015, [3].
Following the Authority’s acceptance of the plaintiff’s serious injury application, the mandatory steps under s 134AB(12) were to be undertaken by the parties. The below table outlines the dates on which these steps were taken by the parties:
| Subsection | Step Required | Date Due | Date Occurred |
| (12)(a) | Conference between the parties | 27 June 2013 2013 (21 days after the Response Date) | 31 May 2013 |
| (12)(b) | The Authority’s statutory offer | 5 August 2013 (60 days after the Response Date) | 29 July 2013 |
| (12)(c) | Plaintiff’s statutory counter offer | 19 August 2013 (21 days after the statutory offer) | 19 August 2013 |
| (12)(d) | Last day for the Authority to accept counter offer | 9 September 2013 (21 days after the counter offer) | N/A |
| (12)(e) | Last day to file writ | 9 October 2013 (51 days after the counter offer) | 10 October 2013 |
The steps under s 134AB(12)(a)-(d) were complied with according to the required timeframe. These steps failed to resolve the matter, with no agreement reached between the parties at the statutory conference, and neither parties’ statutory offer being accepted.
Under s 134AB(12)(e), the plaintiff was required to file the writ between 9 September 2013 and 9 October 2013 (both inclusive), being between 21 days and 51 days after the statutory counter offer was made. However, the plaintiff filed the writ on 10 October 2013, one day outside the required timeframe. Prior to the discovery of the plaintiff’s failure to file the writ on time, a number of pre-trial steps were undertaken by the parties in relation to the matter.
The plaintiff’s solicitors sent a copy of the sealed writ and statement of claim to the defendant’s solicitor, the Authority and the Authority’s insurer on 31 October 2013. In a letter to the plaintiff dated 4 November 2013, the Authority acknowledged receipt of the writ and statement of claim and advised that the matter had been allocated to Minter Ellison, who would act as its solicitors in the matter.[6] A notice of appearance and defence were subsequently filed on 18 November 2013 and 5 December 2014 respectively.
[6]Further Affidavit of Jasmine Naomi Goddard dated 24 August 2015, [3]-[4]; Exhibit JNG5.
According to the evidence of both parties, the plaintiff’s failure to file the writ on time was not immediately discovered. The issue was first raised by the Authority’s solicitors in a letter to the plaintiff’s solicitors dated 15 July 2015.[7] In a letter dated 31 July 2015, from the Authority to the plaintiff’s solicitors, the Authority advised that the issue was only discovered by their solicitors in July 2015.[8] The plaintiff’s solicitors depose that they only became aware of the issue following receipt of the letter dated 15 July 2015 from the Authority’s solicitors.[9]
[7]Affidavit of Jasmine Naomi Goddard dated 21 August 2015, Exhibit JNG1.
[8]Further Affidavit in Support of Martin Alan Gannoni dated 24 August 2015, Exhibit MAG-2.
[9]Affidavit of Jasmine Naomi Goddard dated 21 August 2015, [14]-[15].
Following receipt of the 15 July 2015 letter, the plaintiff’s solicitors wrote to the Authority’s solicitors on 27 July 2015. The plaintiff’s solicitors stated, inter alia:
It seems the proceedings may have been issued 1 day out of time.
We confirm that should this be the case, proceedings were issued 1 day out of time due to an administrative oversight.
We confirm that the defendant did not raise this issue until and by letter, dated 15 July 2015, some two years after the event.
We are concerned as to the significant distress and prejudice the plaintiff will suffer should this matter not be able to proceed.
Both parties have complied with the interlocutory steps as ordered by the Court…
…
In view of the circumstances of the matter we respectfully request that the Authority exercise its discretion pursuant to s 134AB(20A) of the Act and consent to allow these proceedings to continue.
There is no prejudice to the Authority by allowing these proceedings to continue.[10]
[10]Ibid Exhibit JNG2.
The Authority responded to the plaintiff’s solicitors in a letter dated 28 July 2015. The Authority noted that it was unclear whether the plaintiff was making an application for consent pursuant to s 134AB(20A)(a) or s 134AB(20A)(b). It was observed that the plaintiff’s application addressed the question of prejudice as outlined in the test under s 134AB(20A)(a), however the Authority stated that should it be determined that s 134AB(20A)(b) applied, the plaintiff needed to demonstrate that the failure to commence proceedings within the required time limit was ‘not due to any fault or omission of the worker or the worker’s legal representative’.[11]
[11]Ibid Exhibit JNG3.
In an email dated 29 July 2015, the plaintiff’s solicitors advised the Authority that they would not add anything further to their letter of 27 July 2015 in making an application for consent.[12]
[12]Ibid Exhibit JNG4.
The Authority made a determination on 31 July 2015. It was determined that proceedings had not been commenced within the prescribed time limit and that the Authority’s consent was required to commence proceedings. As the application had been made more than 81 days after the plaintiff’s statutory counter offer, the Authority determined that s 134AB(20A)(b) was the applicable consent provision. The Authority refused to give consent under that provision on the basis it was not satisfied that the failure to commence proceedings in accordance with the prescribed time limit of s 134AB(12)(e) was not due to a fault or omission of the plaintiff or the plaintiff’s legal representative.[13]
[13]Further Affidavit in Support of Martin Alan Gannoni dated 24 August 2015, Exhibit MAG-2.
At a directions hearing on 7 August 2015, the Authority sought leave to amend their defence to raise the defence that the proceedings were commenced in contravention of s 134AB(12) of the ACA, and that the plaintiff therefore had no cause of action. Leave was granted and the amended defence was filed and served on 7 August 2015.
The plaintiff then sought the leave of the Court to commence the proceedings pursuant to s 134AB of the ACA, seeking to have the matter determined as a preliminary issue under r 47.04 of the Rules. A summons in draft form was provided to the Court and the Authority on 21 August 2015. The plaintiff sought leave on the basis that the Authority had allegedly given implied consent to commence the proceedings under s 134AB(20A) of the ACA.[14]
[14]An estoppel argument was raised in the summons, but was withdrawn by the plaintiff at the application hearing.
Case Law
There are authorities bearing on the present issue, which consider s 93 of the Transport Accident Act 1986 (Vic) (‘the TAA’) and s 135A(2DE) of the ACA. Those provisions are materially analogous to s 134AB. The authorities relied upon by the Authority were not disputed, and provide guidance as to the effect of a failure to comply with mandatory steps such as those contained in s 134AB(12).
Section 93 of the TAA
This provision deals with damages in respect of death or serious injury as a result of a transport accident in relation to legal rights outside that Act. Like s 134AB of the ACA, it contains a number of provisions that govern the ability of a person to recover damages in any proceedings. These include provisions which require certain steps to be undertaken before damages can be recovered.
The effect of s 93 of the TAA was explored in some detail by the Victorian Court of Appeal in the case of Swannell v Farmer (‘Swannell’).[15] Importantly to the relevant proceeding, the Court of Appeal held that s 93 operated as a substantive provision that served to conditionally extinguish a field of potential rights and liabilities. A cause of action could only arise once the requirements of s 93(4) were complied with. This distinguished s 93 from a procedural provision, which would only serve to bar a remedy.[16]
[15][1999] 1 VR 299.
[16]Ibid 306 [19], 307 [21].
This interpretation was subsequently confirmed in Primary Health Care Ltd v Giakalis (‘Giakalis’),[17] in which the Court of Appeal held that until one of the gateways under s 93 of the TAA is accessed by a claimant, the claimant has no right or cause of action.[18]
[17](2013) 38 VR 165.
[18]Ibid 177 [50], 178 [53], 184-5 [78].
Section 135A(2DE) of the ACA
This provision is similar to s 134AB of the ACA, and governs the process for a worker entitled to compensation in respect of an injury arising out of, in the course of or due to the nature of employment before 12 November 1997 to commence an action for damages. Section 134AB of the ACA governs the process for the same set of circumstances, but where the injury arose on or after 20 October 1999 but before 1 July 2014. Sections 135A(2DE) and 134AB(12) both outline mandatory steps that must be taken before proceedings can be commenced, and are worded in substantially identical terms.
Section 135A(2DE) states that proceedings under s 135A must not be commenced by a worker unless certain mandatory steps are followed. Those steps are that:
(a)the worker and the Authority or self-insurer hold, or begin, a conference within 21 days after the response date; and
(b)the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; and
(c)if the worker does not accept that statutory offer within 21 days after it is made, the worker, before the expiration of that period, makes a statutory counter offer in writing in settlement or compromise of the claim; and
(d)the Authority or the self-insurer does not accept that counter offer within 21 days after it is made; and
(e)the proceedings are commenced not earlier than 21 days, and not more than 51 days, after the counter offer is made or, if a counter offer is deemed to have been made under subsection (2DG), not more than 30 days after the day on which the counter offer is deemed to have been made.
In the Victorian Court of Appeal case of State of Victoria v Robertson (‘Robertson’),[19] the plaintiff had been injured in the course of employment and commenced proceedings for common law damages on 12 December 1997 after being granted a serious injury certificate. However, the mandatory procedural steps under s 135A(2DE) had not been undertaken and no consent had been given by the relevant authority to bring the proceeding out of time under s 135A(6A). The State of Victoria sought an order striking out the proceedings for non-compliance, which was refused at trial in the County Court. On appeal, the Court of Appeal held that, inter alia, the proceeding had been commenced in breach of s 135A(2DE) and should therefore be dismissed.[20] Callaway JA commented that the satisfaction of the steps under s 135A(2DE) were ‘simply a condition precedent to the valid institution of proceedings. As they were not satisfied, the proceedings in fact instituted must now be taken to have been invalid.’[21]
[19](2000) 1 VR 465.
[20]Ibid 474 [26].
[21]Ibid 466 [1].
In Key v Payne (‘Key’),[22] the appellant had suffered an injury in 1993 in the course of employment with the respondent. On 17 March 1999, the appellant issued proceedings for the recovery of damages in respect of his injury in order to avoid his claim becoming statute-barred. It was only subsequent to this, on 22 April 1999, that the Authority granted the appellant a serious injury certificate pursuant to s 135A(4). The mandatory steps of s 135A(2DE)(a)-(d), including the conference and respective statutory offers, were then completed by the parties within the correct time frames. However, the filing of the writ on 17 March 1999 failed to comply with s 135A(2DE)(e), as it fell outside the relevant 21- to 51-day window (being 20 August 1999 to 19 September 1999) after the appellant’s statutory counter offer.[23]
[22](2004) 10 VR 162.
[23]Ibid 164-5 [5]-[7], 165 [9]-[11].
Following the filing of an amended defence by the respondent, which raised the non-compliance issue, the appellant sought the respondent’s consent under s 135A(6A) to bring the proceeding out of time, which was refused.[24] The issue was then heard before the County Court as a preliminary issue in the proceedings, where the judge ultimately ordered that the writ and statement of claim be struck out. A further application for consent from the authority under s 135A(6B) was also refused.[25]
[24]Ibid 165 [12], [14]-[15].
[25]Ibid 166 [16]-[17].
After the appellant re-issued proceedings in identical terms and had the matter dismissed due to the writ being filed outside the correct timeframe, an appeal was made to the Court of Appeal.[26] Although a large part of the decision involved issues regarding the retrospective application of amendments to the ACA, relevantly to the current proceeding, the Court of Appeal found that a failure to comply with the mandatory step of filing a writ within the required timeframe under s 135A(2DE)(e) barred the appellant from bringing proceedings.[27]
[26]Ibid 166 [19]-[20], 167 [23]-[24].
[27]Ibid 177 [71], 178 [75].
The plaintiff’s submissions
In seeking leave to continue the proceeding, the plaintiff acknowledges that the effect of non-compliance with s 134AB of the ACA was that the plaintiff’s cause of action would be extinguished until its terms were complied with.[28] However, the plaintiff submits that the Authority had provided implied consent to the commencement of the proceedings outside of the required timeframe, under s 134AB(20A).
[28]Transcript of Proceedings, Quinlan v Catholic Regional College Sydenham (Supreme Court of Victoria, S CI 2013 05284, Zammit J, 25 August 2015) (‘T’) 3, Lines (‘LL’) 10-17.
In written and oral submissions, the plaintiff argues that the service of the writ and statement of claim on the Authority on 31 October 2013 constituted an application under s 134AB(20A) for consent. As the application fell within the 51- to 81-day period after the plaintiff’s statutory counter offer, consent could be granted so long as the Authority found that it would not be prejudiced, pursuant to s 134AB(20A)(a)(ii). The plaintiff submits that the Authority’s letter of 4 November 2013 acknowledging receipt of the writ and statement of claim, and stating that the matter had been referred to Minter Ellison, constituted an act of implied consent by the Authority for the purposes of s 134AB(20A)(a)(ii). The plaintiff submits that it could be inferred that the Authority was satisfied that the defence of the proceedings would not be prejudiced by such consent, particularly in light of its subsequent conduct in preparing the matter for trial.[29]
[29]Plaintiff’s Submissions dated 24 August 2015, 2 [6]-[8]; T 4, LL 14-24.
The plaintiff submits that, as s 134AB(20A) prescribed no particular form or manner for an application to be made for consent, nor for how consent could be granted, it was open to the Court to hold that implied consent had been given by the Authority in its letter of 4 November 2014 and its subsequent conduct of the proceeding.[30]
[30]Plaintiff’s Submissions dated 24 August 2015, 2 [6]; T 3, LL 24-9; T 4 LL 7-10.
It should be noted that the plaintiff does not contest the formal determination by the Authority of 31 July 2015 to refuse consent in relation to the plaintiff’s application of 27 July 2015 under s 134AB(20A)(b).
The Authority’s submissions
The Authority argues that, as the plaintiff has failed to comply with the time limit prescribed by s 134AB(12)(e) and does not have the Authority’s consent under s 134AB(20A), the plaintiff has no cause of action and the proceeding should be dismissed with costs on the basis that it is a nullity.[31]
[31]Defendant’s Outline of Submissions dated 24 August 2015, 2 [3].
The Authority relies on Swannell, Robertson and Key to support the contention that the ACA operated so that the plaintiff’s cause of action for damages was extinguished, subject to compliance by the plaintiff with the provisions of s 134AB, including s 134AB(12).[32] The Authority submits that the Court has no power to remedy the plaintiff’s non-compliance, with only the Authority having the power under s 134AB(20A) to provide consent to the commencement of proceedings outside the statutory timeframe.[33]
[32]Ibid 3 [10]; T 7, LL 24-31; T 8 LL 1-19.
[33]Defendant’s Outline of Submissions dated 24 August 2015, 6-7 [24].
With respect to the plaintiff’s argument that there was implied consent granted by the Authority pursuant to s 134AB(20A)(a)(ii) in its letter of 4 November 2013, the Authority denies that there was an application by the plaintiff for consent. The Authority submits that the plaintiff’s letter to the Authority dated 31 October 2013, in which the writ was served, contains no reference to s 134AB(20A) nor to an application for consent in general terms. Nor does the letter of 31 October 2013 discuss the issue of any prejudice caused to the Authority by the late service, which is the test for the grant of consent under s 134AB(20A)(a)(ii). This was contrasted with the letter from the plaintiff’s solicitor dated 27 July 2015, in which an application was made in explicit terms.[34] In the circumstances where the plaintiff’s letter of 31 October 2013 and the Authority’s response dated 4 November 2013 made no direct or indirect reference to s 134AB(20A), the proceedings being filed out of time, or any sort of request for consent, the Authority submits that the Court cannot find on the evidence that implied consent was granted.
[34]T 11 LL 17-31; T 12 LL 16.
The Authority relies on the principle from Swannell and Giakalis that an injured person ‘does not have any cause or right of action against the person who might have caused the injury’ until s 93 of the TAA is complied with. The Authority argues that s 93 of the TAA, being a substantive provision, is analogous to s 134AB of the ACA, and therefore that the failure of the plaintiff in the present case to comply with s 134AB(12) means that the plaintiff does not have a cause of action and that the present proceeding is not justiciable.[35] The approach of Swannell was applied to s 135A of the ACA by the Victorian Court of Appeal in Millard v State of Victoria.[36]
[35]Swannell [1999] 1 VR 299, 308 [28]; Giakalis [2013] 38 VR 165, 178 [53], [55].
[36][2006] VSCA 29, 32.
While the Authority relied on numerous authorities, it referred in particular to Key and Robertson, where it was held that a failure by the plaintiff to file a writ in accordance with the timeframe stipulated under the mandatory steps of s 135A(2DE) meant that the plaintiff had no cause of action, and that any proceedings commenced were invalid.[37] The Authority submits that the present matter is relevantly indistinguishable, and that the principle from Robertson and Key that the satisfaction of the mandatory steps is a condition precedent to the valid institution of proceedings should be applied, so as to hold the current proceedings invalid. Therefore, on the basis of the plaintiff’s non-compliance with s 134AB(12)(e), the Authority submits that the plaintiff should be barred from bringing the proceeding under s 134AB, and the Court should dismiss the proceeding with costs.[38]
[37]Defendant’s Outline of Submissions dated 24 August 2015, 5 [15].
[38]Ibid 5-6 [19]-[20], 7 [26].
Analysis
There is no contention against the fact that the filing of the writ and statement of claim by the plaintiff on 10 October 2013 occurred outside the timeframe prescribed by s 134AB(12)(e). The consequence of this non-compliance was that the proceeding could not be validly commenced unless the statutory procedure under the ACA for remedying this non-compliance was followed; that is, unless the plaintiff received consent from the Authority pursuant to s 134AB(20A).
Although s 134AB(20A) does not stipulate exactly how an application for consent is to be made, or how consent is to be given, it is expressly stated that an application must be made, and that the Authority must be satisfied of the relevant matters in order for consent to be granted. There is no express provision within the subsection for an application to be made, or for consent to be given, impliedly. No submission was made by the plaintiff to suggest that there had been any intention by Parliament to make provision for the process to occur impliedly, and review of the Second Reading Speech did not disclose any such intention.
The difficulty with accepting the plaintiff’s contention that an application was made by the plaintiff to which the Authority gave implied consent is that the evidence before the Court was that neither party had any knowledge at the relevant time that the proceedings had been brought outside the statutory timeframe. The Authority stated in its letter of 31 July 2015 that its solicitors only became aware of that fact in July 2015, while the plaintiff’s solicitors deposed that they had only became aware when they were notified by the Authority’s solicitors on 15 July 2015. It could not, therefore, be demonstrated that the plaintiff had any intention, subjective or objective, to make an application for consent from the Authority in the service of the writ and statement of claim on 31 October 2013. Similarly, the Authority’s letter to the plaintiff on 4 November 2013 cannot be construed as a form of implied consent. It was a mere acknowledgment of receipt of the writ and a statement that the matter had been referred to its lawyers.
The lack of awareness by the parties at that time presents the further issue that, in order for consent to be given by the Authority, direct consideration needed to be given by the Authority to the question of whether or not such consent would cause prejudice. That is the relevant test under s 134AB(20A)(a)(ii). The contents of the 4 November 2013 letter do not demonstrate any such consideration by the Authority.
The facts before the Court simply do not support the plaintiff’s proposed construction. Section 134AB(20A) of the ACA expressly provides that the Authority has the power to cure a failure to follow the mandatory process under s 134AB(12). The process for obtaining the Authority’s consent to cure the failure was not followed in the present matter until 27 July 2015, when the plaintiff made an application that the Authority denied following the test under s 134AB(20A)(b).
Whilst the ACA provides the Authority with the power to consent, there is no provision that provides this Court with a power to cure a failure to adhere to s 134AB(12). Further, as s 134AB(12) is a substantive rather than procedural provision, a failure to comply has the effect that the cause of action is extinguished, rather than resulting in a remedy being barred.
Accordingly, as consent was never provided by the Authority under either s 134AB(20A)(a)(ii) or (b), the plaintiff’s cause of action has been extinguished as a result of the failure to comply with s 134AB(12)(e). These proceedings should therefore be dismissed.
The combination of the ACA, the effect of the relevant statutory provisions and the delay of one day by the plaintiff’s solicitors, albeit not deliberate, has resulted in a harsh outcome to the plaintiff. In this respect, the comments of Ormiston JA in Key are probative:
Yet again the court has had to consider the confused and confusing provisions of the Accident Compensation Act 1985. It would be more satisfying if the court could approach this legislation as benevolent in effect and capable of being construed accordingly, but, so frequently have its provisions been seen to have been intended to have the opposite effect, that such an approach to equivocal provisions cannot fairly be prescribed. In the circumstances and notwithstanding the doubts I have about the legislative scheme and its operation in the present case, I would agree in the conclusions reached by Hansen AJA substantially for the reasons he has given.[39]
[39]Key (2004) 10 VR 162, 163 [1].
Conclusion
The plaintiff’s proceeding against the defendant is dismissed on the ground that the proceeding was not validly commenced in accordance with the mandatory steps of s 134AB(12).
I will hear the parties as to costs.
9
2
0