re Monger; ex parte Cross
[2004] WASCA 176
•13 AUGUST 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RE MONGER; EX PARTE CROSS [2004] WASCA 176
CORAM: MALCOLM CJ
TEMPLEMAN J
WHEELER J
PULLIN J
EM HEENAN J
HEARD: 8 MARCH 2004
DELIVERED : 13 AUGUST 2004
FILE NO/S: CIV 2367 of 2002
MATTER :An application for a writ of certiorari and a writ of mandamus against Mr Ross Monger, Director, Workcover Conciliation and Review
EX PARTE
PETER NORMAN CROSS
ApplicantAND
BORAL CONCRETE LTD
Respondent
Catchwords:
Workers' Compensation - Administrative law - Judicial review - Certiorari and mandamus - Decision of Director of Conciliation and Review under Workers' Compensation and Rehabilitation Act 1981 (WA) - Purported election to exercise common law remedies - Late production of medical evidence - Effect of non-compliance with statutory timetable - Estoppel or waiver of statutory defences by conduct
Legislation:
Interpretation Act 1984 (WA), s 61(1)(f)
Limitation of Actions (Personal Injury Claims) Act 1983 (Vic)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93E(6)
Workers' Compensation and Rehabilitation Act 1987 (NSW), s 151D
Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999 (WA), s 3
Workers' Compensation and Rehabilitation Amendment Act 1999 (WA)
Workers' Compensation and Rehabilitation Regulations 1982, reg 19M
Result:
Order nisi for writ of certiorari discharged
Category: B
Representation:
Counsel:
Applicant: Mr S Melville
Respondent: Mr M W Schwikkard
Intervenor
(Attorney General
for Western Australia) : Ms J C Pritchard
Solicitors:
Applicant: Chapmans
Respondent: Jackson McDonald
Intervenor
(Attorney General
for Western Australia) : State Solicitor
Case(s) referred to in judgment(s):
Archer v Howell (1992) 7 WAR 33
Australian Iron & Steel Ltd v Hoogland (1961) 108 CLR 471
Baker and Campbell (1983) 153 CLR 52
Bestobell Overseas Ltd v Carden [1988] VR 891
Bingham v England (1996) 17 WAR 226
Brikom Investments Ltd v Carr [1979] 1 QB 467
Bropho v Western Australia (1990) 171 CLR 1
Cerealmangimi SpA v Toepfer [1981] 3 All ER 533
Chapple v Durstan (1830) 1 Cr & J 1; (1830) 148 ER 1311
Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159
Clarke v Bailey (1993) 30 NSWLR 556
Coco v The Queen (1993) 179 CLR 427
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501
Commonwealth v SCI Operations Pty Ltd (1998) 72 ALJR 687
Commonwealth v Verwayen (1990) 170 CLR 394
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 77 ALJR 40
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 78 ALJR 161
Dow Jones Company Inc v Gutnick (2002) 210 CLR 575
Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839
Emanuele v Australian Securities Commission (1997) 188 CLR 114
Enoka v Shire of Northampton (1996) 15 WAR 483
Giumelli v Giumelli (1999) 196 CLR 101
Graham v Ingleby (1848) 1 Ex 651; (1848) 154 ER 277
Groves v The Commonwealth (1981) 150 CLR 113
Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641
Haynes v Hirst (1927) 27 SR (NSW) 480
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850
Mannai Investment Co v Eagle Star Life Assurance Co Ltd [1997] AC 749
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Mealing v P Chand [2003] NSWCA 205; (2003) 57 NSWLR 305
Paal Wilson & Co v Partenreederei [1983] 1 AC 854
Parker v The Commonwealth (1965) 112 CLR 295
Phillips v Martin (1890) 11 LR(NSW) 153
Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348
Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Potter v Minahan (1908) 7 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27
R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122
R v McNeil & Anor (1922) 31 CLR 76
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Re Keystone Knitting Mills' Trademark [1929] 1 Ch 92
Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129
Re Monger; Ex parte Woodford [1999] WASC 273
Re Ross Monger; Ex parte Swan Portland Cement Ltd [2001] WASCA 321
Re Sydney Formworks Pty Ltd (1965) 82 WN (Pt 1) (NSW) 558; [1965] NSWR 646
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491
Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398
Smyth v Bailey & Co [1940] 3 All ER 60
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Taylors Fashions Ltd v Liverpool Trustees Co Ltd [1982] QB 133
Thompson v Palmer (1933) 49 CLR 507
Toolan v Metro (Perth) Trust (2001) 25 WAR 1
United Construction Pty Ltd v Maketic [2003] WASCA 138
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Walton Stores (Interstate) Ltd v Maher (1987) 164 CLR 387
Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713
Wilson v McIntosh [1894] AC 129
Wright v John Bagnall and Sons Ltd [1900] 2 QB 240
Case(s) also cited:
Ainsworth v Criminal Justice Commission (1991) 175 CLR 564
Craig v South Australia (1994) 184 CLR 163
Davies and Jones v State of Western Australia (1904) 2 CLR 29
Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463
Ex parte George Chapman Ltd [1932] SASR 184
Ex parte Kauter (1904) 4 SR(NSW) 209
Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301
Ira, L & AC Berk Ltd v Commonwealth (1930) 30 SR(NSW) 119
King-Brooks v Roberts (1991) 5 WAR 500
Levy v Victoria (1997) 189 CLR 579
McEldouney v Forde [1969] 2 All ER 1039
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402
Mucris v Lucas [1971] SASR 329
Plunkett v Smith (1911) 14 CLR 76
R v Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
R v Commissioner of Patents; ex parte Martin (1953) 89 CLR 381
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Monger; Ex parte Ivey [1999] WASC 250
Re The Metropolitan Abattoirs Act 1908-1930
Wells v Finnerty (1910) 12 WALR 41
Western Australian Field & Game Association Inc v Pearce (1992) 8 WAR 64
Young v Tockassie (1905) 2 CLR 470
MALCOLM CJ: This is the return of an order nisi for a writ of certiorari and a writ of mandamus whereby Mr Ross Monger, the Director of the Conciliation and Review Directorate, show cause before the Full Court of the Supreme Court why such writs should not be issued against him for the purpose of being quashed the decision of the Director:
(a)not to register the election issued by Peter Norman Cross ("the applicant") on the ground that it did not comply with s 93E(3)(b) of the Workers Compensation and Rehabilitation Act 1981 (WA) ("the Act") and Reg 19M of the Workers Compensation and Rehabilitation Regulations 1982 ("the Regulations"),
which non-registration of the form 25 was contrary to the provisions of the Act; and compelling the Director to:
(b)register the election issued by the applicant in form 25 on the basis that it does comply with s 93E(3)(b) of the Act and Reg 19M of the Regulations on the following grounds:
ABy virtue of s 93E(3)(b) of the Act and Reg 19M of the Regulations, the Director was required to register the election of the applicant produced to the Director.
BThe applicant's form for registration does comply with the requirements of s 93E(3)(b) of the Act and cl 19M of the Regulations.
CThe Director should have registered the Form 25 on the basis that it did comply with the Act and Regulations.
The Question
The question raised by the order nisi requires the determination of the proper interpretation and application of the relevant provisions of Pt IV Div 2 of the Act and the relevant regulations. The apparent purpose of the statutory provisions is to limit the right of a worker to be awarded damages at common law for injuries caused by the negligence of his or her employer.
Section 93C provides that, if the provisions of the Division apply, "a court is not to award damages to a person contrary to this Division". Section 93E(3)(b) relevantly provides that damages can only be awarded to a worker if:
"the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."
Section 93E(4) provides:
"For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."
The question whether a worker has a significant disability or not can be resolved by agreement between the worker and his employer. Absent such an agreement, the question can be determined in accordance with s 93D of the Act and the relevant provisions in that respect which are contained in Pt IIIA of the Act.
Background
The applicant alleged that in May 1996 he injured his right elbow in the course of his employment by Boral Resources WA Ltd ("Boral"), as a result of which he made a claim for workers compensation. Weekly payments of worker's compensation commenced on a date which was prior to 5 October 1999. It was on that date that the Act received the Royal assent and came into force. By virtue of s 93E(6)(a) of the Act, the applicant was required to produce to the Director the medical evidence on which he relied, together with a Form 22 by 14 December 1999. The Form 22 and the medical evidence was lodged two days late on 16 December 1999. The late lodgement was not noticed by or on behalf of the Director and the form accepted.
On 5 January 2000, the applicant sought to make an election pursuant to s 93E(3)(b) by lodging a document in Form 25, being the form prescribed by the Regulations. The applicant's position was that, at the time he purported to make the election, it had not been determined whether or not he had a disability of not less than 16 per cent. Unfortunately for him that day, 5 January 2000, was the "termination date" for all workers, including the applicant, who had begun to receive weekly payments of compensation before 5 October 1999. That was the day on which the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), as amended by s 3 of the Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999 (WA) came into effect.
As at the termination date on 5 January 2000, the degree of disability suffered by the applicant had not been determined because it had been disputed by his employer. Previously, on 16 December 1999, the applicant had referred the dispute to the Director of the Conciliation and Review Directorate, Mr Monger, pursuant to s 96D(6) of the Act by lodging a Form 22 and the medical evidence on which he relied.
On 25 January 2000, the Director rejected the applicant's purported election on the ground that he had failed to comply with Reg M of the Regulations. Reg M provided that an election could not be made unless the degree of disability had been agreed by the worker and the employer, or determined to be not less than 16 per cent.
It follows that, at 25 January 2000, the applicant could not make an election under s 93E(6) of the Act. Section 93E(6) only applied when the degree of disability was still in dispute on the termination day. In such a case, the worker was entitled to elect within 14 days after he had been given notice by the Director that an agreement or determination of the worker's degree of disability had been recorded. At that time, the applicant was unable to satisfy the requirement in s 93E(6)(a) that he produce the necessary medical evidence "not less than 21 days before the termination day".
As has already been seen, the position then was that the applicant should have produced the evidence of his degree of disability to the Director no later than 14 December 2000: see s 61(1)(f) of the Interpretation Act 1984 (WA). The relevant evidence was not put before the Director until 16 December 2000, which was two days out of time. The Director had no power to extend the time for compliance.
As it happened, the Director failed to notice that the applicant had lodged his election out of time. Instead, he referred the matter to a Review Officer. The purported reference was the subject of a hearing by the Review Officer. In the result, the Review Officer determined on 22 March 2001 that the applicant had suffered a disability of not less than 16 per cent. The solicitors for the applicant were informed of this determination by a letter from the Director dated 29 March 2001.
The solicitors for the applicant considered that the applicant was then entitled to make a further election under s 93E(6) and did so within the time limited by that provision. This purported election, however, was rejected by the Director on 20 April 2001 on the ground that the Form 22 and supporting medical evidence lodged on 16 December 1999 had not been lodged not less than 21 days before the termination day.
I agree with Pullin J that had the Director rejected the purported election lodged on 16 December 1999, as he was entitled to do, the applicant would have had no grounds for complaint. Notwithstanding the comparative complexity of the legislation, the time limits within which the applicant was required to act were clear. It is also clear that neither the Director, nor the Court had any power to extend the time. The plain fact is that the Director should have rejected the application by the applicant because the date for the commencement of weekly payments was specified in the Form 22 as "prior to 5/10/99". In these circumstances, the applicant was not and could not ever be in a position to make an election.
Waiver by Boral
It was contended on behalf of the applicant that because Boral did not take any point about the Form 22 being lodged out of time, participated in the review proceedings and contested them on the merits, Boral should be taken to have waived the time limit which required the form to be lodged with the Directorate 21 days before the termination date. The authority against that contention is the decision to the contrary in Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223 per Anderson J at [21], with whom Wallwork and Steytler JJ agreed. As Templeman J has rightly pointed out in his reasons, s 93C expressly prohibits a Court from awarding damages "to a person contrary to this Division".
It was contended on behalf of the applicant that this Court should overrule or depart from the decision in Re Monger; Ex parte TNT Australia Ltd. It was for this reason that a bench of five Judges was constituted for this case. Subject to the question of waiver, I am of the opinion that the decision in Re Monger; Ex parte TNT Australia Ltd was clearly correct as a matter of law. The question is whether there is room for the application of the doctrine of waiver to the relevant time limit which required the Form 22 to be filed on or before 14 December. In my opinion, subject to that question, the present case is otherwise indistinguishable from Re Monger; Ex parte TNT Australia Ltd which held that the failure to observe the time limit prescribed by s 93E(6) was fatal.
It is appreciated, as Templeman J has pointed out, that the applicant had only a little more than five weeks in which to obtain the necessary medical evidence and lodge the Form 22 with the Director. As his Honour has also pointed out, however, there are various unknowns in relation to the full circumstances.
As Anderson J (with whom Wallwork and Steytler JJ agreed) said in Re Monger; Ex parte TNT Australia Ltd (supra) at [21], "The question is one of construction". On the face of it, once the relevant Division applies the effect of s 93C is that the worker must take all of the necessary steps within the prescribed periods if he is to recover damages. The failure to do so, it was held, deprives the Court of jurisdiction to award damages. As a result, Anderson J held at [13] that "neither the consent of the parties nor unauthorised administrative act of the Director can overcome that provision". This conclusion implies that the effect of the provision is that unless the relevant provisions of the Division are complied with, the common law right to claim damages is lost because the Court is deprived of jurisdiction to award damages.
Unfortunately, as Templeman J has pointed out, in this case the Court was not fully informed of the circumstances and, in particular, the explanation why it took so long after the applicant suffered his injury in 1996 to ascertain his degree of disability for the purposes of making an election. We were not informed whether there were other persons in a similar position.
I am also puzzled by the failure of the Director to respond to the letter to him dated 4 April 2001 from the applicant's solicitors, which sought clarification of an understanding that, at the time the relevant regulations were gazetted retrospectively, the Director had indicated that a Form 22 filed "on or about" 14 December 1999 would be accepted as complying with the regulations and seeking clarification in relation to that.
Re Monger; Ex parte Dutch (2001) 25 WAR 96; Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253; and Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 each held that the adequacy of the medical evidence furnished with a Form 22 referral conditioned the exercise of the jurisdiction of the Director to consider, in accordance with s 93D, the dispute about the degree of disability of a worker and his power to refer any dispute about it to a Review Officer for determination under s 93D(10) of the Act.
The question in this case is whether the time limit for filing a Form 22 can be overcome by resort to one or other of the doctrines of waiver or estoppel in a situation where the effect of the relevant statute is to provide that the Court has no jurisdiction to award damages contrary to the provisions of Div 2 of Part IV of the Act as provided in s 93C of the Act.
In the present case, as Heenan J has pointed out, it was common ground that the medical evidence relied upon by the applicant filed in conjunction with the Form 22, and later referred to the Director, satisfied the statutory requirements. This was also the position in Re Monger; Ex parte WMC Resources Ltd. That decision, together with the decisions in Re Monger; Ex parte Dutch (supra); and Re Monger; Ex parte United Construction Pty Ltd (supra) have made it clear that the adequacy of the medical evidence, which is required to accompany the Form 22 referral, conditions the jurisdiction of the Director to consider a dispute about the degree of disability of a worker, as well as the ability of the Director to refer such a dispute to a Review Officer for determination under s 93D(10).
The relevant issue in this case is whether the time limit for the filing of the Form 22, should be characterised as barring a right as distinct from a remedy. In the former case, there is no room for the operation of waiver. If, however, the provision bars the remedy rather than a right, the bar may be waived or may, by operation of the doctrine of estoppel, preclude a defendant from taking the point, in the event that proceedings are subsequently commenced.
Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (4th Ed 2002) at 17-140 suggest that whilst there is the beginning in the decisions in England and Australia of an appreciation that "waiver" is used as a synonym for a number of principles, each distinct from the other, there has been little attempt to answer the question whether "waiver" has any independent, and if so what, content of its own. In this context, reference is made to a number of authorities including Haynes v Hirst (1927) 27 SR (NSW) 480 at 486 – 487: Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 at 882 – 884; Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713; Brikom Investments Ltd v Carr [1979] 1 QB 467 at 489 – 490; Cerealmangimi SpA v Toepfer [1981] 3 All ER 533 at 538 – 9; Taylors Fashions Ltd v Liverpool Trustees Co Ltd [1982] QB 133 at 150‑ 151; and Paal Wilson & Co v Partenreederei [1983] 1 AC 854 at 913 – 914 and 916.
In Commonwealth v Verwayen (1990) 170 CLR 394 at 401 – 402, Mason CJ noted that, in relation to actions brought against the Commonwealth following the loss of HMAS Voyager in a collision with HMAS Melbourne, the Commonwealth did not plead that the actions were statute‑barred under the Limitation of Action Act 1958 (Vic) ("the Act"). There was formal notification by the Australian Government Solicitor that the Commonwealth proposed to admit liability and to waive the Statute of Limitations defence. Damages only were in issue. A number of Commonwealth Ministers made public statements that this decision had been taken together with the adoption of a policy not to contest liability.
In or about November 1985, the Commonwealth decided to reconsider its previous stance and began to plead a defence based on The Limitation Act and a contention that the Commonwealth owed no duty to the plaintiffs based on Parker v The Commonwealth (1965) 112 CLR 295 at 301 – 302 per Windeyer J, which had been disapproved in Groves v The Commonwealth (1981) 150 CLR 113 by Stephen, Mason, Aickin and Wilson JJ at 129 – 134. One answer to this change of tack was that the plaintiffs replied that the Commonwealth had disclosed no defence to the decisions in Parker and Groves and that the Act did not apply to the Commonwealth. Alternatively, it was pleaded that the Commonwealth had waived such defences. It was also pleaded that the Commonwealth was estopped from relying on either defence.
The questions of law raised by the amended defence were argued as a preliminary matter on the basis that the relevant facts were not in issue or would not be seriously disputed at the trial. O'Bryan J held that the public policy defence based on Groves (supra) was not available to the Commonwealth on the facts. In relation to waiver, it was held that if the Commonwealth had waived the limitation defence, such waiver was revocable and had been revoked by the Commonwealth. There was no estoppel because the parties had not been in a pre‑existing legal relationship. Further, the respondent (plaintiff) had not been materially disadvantaged because any legal costs incurred could be recovered by an appropriate costs order.
The decision of O'Bryan J on estoppel was prior to the decision in Walton Stores (Interstate) Ltd v Maher (1987) 164 CLR 387. As Mason CJ pointed out at 403 in Verwayen, if a pre‑existing legal relationship was needed in order to found a promissory estoppel, it was clearly present in Verwayen.
It was also contended on behalf of the respondent in Verwayen that the Commonwealth had voluntarily and irrevocably waived the benefit of a statutory right to plead the Limitation Act as a complete defence. In considering this contention, Mason CJ said at 404 that:
"Undoubtedly, some statutory rights are capable of being extinguished by the person for whose benefit they have been conferred: Sandringham Corporation v. Rayment (1928) 40 CLR 510 at p 527; Wilson v. McIntosh [1894] AC 129 at pp 133-134. However, some statutory rights may also operate as a condition precedent to a court's jurisdiction: Park Gate Iron Co. v. Coates (1870) LR 5 CP 634; Kammins Ballrooms Co. v. Zenith Investments (Torquay) Ltd [1971] AC 850. More importantly, some rights may be conferred for reasons of public policy so as to preclude contracting out or abandonment by the individual concerned: see Lieberman v. Morris (1944) 69 CLR 69. It is therefore necessary to examine the relevant statutory provision in this case in order to ascertain whether it is susceptible to extinguishment in this way.
Section 5(6) of the Act provided:
'No action for damages for negligence ..., where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person, shall be brought after the expiration of three years after the cause of action accrued.'
This sub-section was repealed by s 3(c) of the Limitation of Actions (Personal Injury Claims) Act 1983 (Vict). However, s 11(2) of that Act provided:
'The Acts amended by this Act shall apply as in force immediately before the commencement of this Act to a cause of action arising more than six years before the date of commencement of this Act.'
That Act was proclaimed to commence on 11 May 1983."
Mason CJ also said at 405:
"Although the terms of s 5(6) are such that it is susceptible of being read as going to the existence of the jurisdiction of a court to hear and determine an action of the kind described, limitation provisions similarly expressed have not been held to limit the jurisdiction of courts. Instead, they have been held to bar the remedy but not the right and thus create a defence to the action which must be pleaded: Dawkins v Lord Penrhyn (1878) 4 App Cas 51 at pp 58-59; The Llandovery Castle [1920] P 119 at p 124; Dismore v Milton [1938] 3 All ER 762; Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398; Ketteman v. Hansel Properties Ltd [1987] AC 189 at p 219."
Mason CJ went on to consider whether the defence under the statute in question was capable of waiver. His Honour said at 406:
"… it is possible to 'contract out' of the statutory provisions, and it is equally possible to deprive them of effect by other means such as waiver. Put differently, the provisions are procedural rather than substantive in nature, which suggests that they are capable of waiver: Admiralty Commissioners v Valverda [1938] AC 173 at 185."
The Chief Justice went on at 406 – 407 to consider the question whether waiver exists as a defence or answer in any case "except where it is used as an alternative designation for some other defence or answer, for example, election, estoppel or new agreement". His Honour also said at 406 – 407:
"According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd. (1920) 28 CLR 305 at p 326; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at p 658. However, the better view is that, apart from estoppel and new agreement, abandonment of a right occurs only where the person waiving the right is entitled to alternative rights inconsistent with one another, such as the right to insist on performance of a contract and the right to rescind for essential breach: see Kammins, at p 883. This category of waiver is an example of the doctrine of election.
Another category of waiver is one in which a person is prevented from asserting, in response to a claim against him, a particular defence or objection which would otherwise have been available. Here waiver is said to arise when the person agrees not to raise the particular defence or so conducts himself as to be estopped from raising it: see Kammins, at p 883."
The Chief Justice acknowledged at 405 the public policy that there should be finality in civil litigation. The chosen method of achieving this in Verwayen was not by way of "imposing a jurisdictional restriction, but by conferring on defendants a right to plead as a defence the expiry of the relevant time period". It followed that the purpose of the statute was to confer a benefit on individuals rather than meet some public need which must be satisfied to the exclusion of the right of access to the Courts.
Mason CJ also said at page 406:
"But, granted that some statutory rights can be waived, the mere existence of cases in which statutory rights have been held to be susceptible to waiver does not signify that those cases are all exemplifications of one concept or doctrine. As often as not, the term 'waiver' is used to describe the result of the application of various principles rather than to designate a particular legal concept or doctrine. The consequence is that the expression 'waiver' has been the subject of robust criticism, notably by Dr Ewart in his work Waiver Distributed, (1917); see also Bysouth v Shire of Blackburn and Mitcham (No 2) [1928] VLR 562 at p 579; Larratt v Bankers and Traders' Insurance Co (1941) 41 SR (NSW) 215 at p 226; Kammins, per Lord Diplock [at pp 882-883]. This is because 'waiver' is an imprecise term capable of describing different legal concepts, notably election and estoppel."
Mason CJ commented at 407 that, in these circumstances, the authorities dealing with waiver of statutory rights did not call for special consideration. This was because they spoke "with different voices, sometimes in the language of election, in times that of estoppel and at other times in terms of unconscionability".
In the result, the Chief Justice concluded at 414 – 415 that the respondent had been induced by the Commonwealth's conduct to assume that the Commonwealth had made a decision not to plead the limitation defence or the Groves defence, and that that decision would not be changed. The circumstances pointed to the existence of a definitive government policy which had been followed to the point of judgment in other cases, and which supported the conclusion that the assumption made by the respondent and his advisers was a reasonable assumption for them to make. There was a detriment which flowed from reliance on the assumption if the assumed state of affairs was shown not to exist. In the end, however, Mason CJ held that the respondent's case on waiver and estoppel had not been made out.
Brennan J, who dissented, would have allowed the appeal and remitted the matter to the trial Judge to determine what detriment was suffered by the plaintiff in continuing with the action until the defence was amended, and what was fair compensation for that detriment. Further, that upon payment by the defendant to the plaintiff of the amount so ascertained, the action would stand dismissed. Finally, his Honour considered that the plaintiff should pay the costs of the proceedings after amendment of the defence.
Brennan J at 422 also quoted the following comments by Lord Wright in Smyth v Bailey & Co [1940] 3 All ER 60 at 70 regarding the meaning of "waiver":
"The word 'waiver' is a vague term used in many senses. (Stroud's Judicial Dictionary lists at least 13.) It is always necessary to ascertain in what sense and with what restrictions it is used in any particular case. It is sometimes used in the sense of election as where a person decides between two mutually exclusive rights. Thus, in the old phrase, he claims in assumpsit and waives the tort. It is also used where a party expressly or impliedly gives up a right to enforce a condition or rely on a right to rescind a contract, or prevents performance, or announces that he will refuse performance, or loses an equitable right by laches."
Brennan J also said at 422 – 423:
"To identify the relevant legal doctrine, it is necessary to identify the sense in which we intend to use the term 'waiver'. In this case, there is no contract to admit liability (a proposition considered in Newton, Bellamy and Wolfe v SGIO [1986] 1 Qd R 431) and we can put aside until we consider estoppel the kind of waiver which depends on the suffering of detriment by a person who relies on the waiver. We are concerned here with a unilateral release or abandonment of a right. In Banning v. Wright [1972] 1 WLR 972 at pp 978-979; [1972] 2 All ER 987 at p 998, Lord Hailsham of St Marylebone LC pointed out that 'waiver' is derived from the same root as the word 'waif' – a thing, or person, abandoned. Lord Hailsham, after citing the speech of Lord Wright (supra), continued:
'In my view, the primary meaning of the word 'waiver' in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted.'
In accord, see Halsbury's Laws of England, 4th ed (1976), vol 16, par 1471. His Lordship must not be taken to be saying that waiver necessarily occurs before pleadings are closed. Clearly enough, rights are frequently waived during a trial. What his Lordship is saying is that a right which is susceptible of waiver can be 'confessed' by a party against whom it might prima facie be exercisable but that party's liability can be 'avoided' by showing that the right has been abandoned. In other words, upon waiver, the party waiving the right ceases to be able thereafter to assert it effectively. When a right has been waived in the sense defined by Lord Hailsham (and it is in this sense that it is used in this judgment), it is unnecessary to consider whether any other party has acted in reliance on the release or abandonment: the right is abandoned once and for all."
Brennan J went on to make a detailed examination of what was involved in waiver at 424 – 428. The general principle was stated by Alderson B at p 657 Graham v Ingleby (1848) 1 Ex 651; (1848) 154 ER 277 at p 279 as follows:
"It is evident that a party who has a benefit given him by statute, may waive it if he thinks fit. There are many cases in which no action can be commenced except after certain notice of action. That is a requirement by statute; but if a plaintiff went to trial, and the defendant did not then object to the want of notice, could he afterwards set aside the whole proceedings because no notice was given? It is clear that he could not."
In Wilson v McIntosh [1894] AC 129, a caveat had been lodged against an application to bring land under the Real Property Act 1862 (NSW). The time limited for the caveator to commence proceedings having expired, the caveat lapsed and the applicant was entitled to have the caveat removed. The applicant, however, obtained an order that the caveator should state her case, which she did. The applicant, without having taken any steps to set the matter down for hearing, applied to have the caveat removed because it had expired. The application was refused by the Privy Council.
In Verwayen at 425, however, Brennan J said that:
As it is a characteristic of a right susceptible of waiver that it is introduced solely for the benefit of one party, a condition precedent to the jurisdiction of a court to grant relief cannot be waived: Park Gate Iron Co v Coates (1870) LR 5 CP 634. It follows that, if the jurisdiction of a court to entertain proceedings is conditioned on the commencement of the proceedings within a specified time, a defendant cannot waive the time requirement and thereby confer jurisdiction on the court."
Brennan J also referred to Australian Iron & Steel Ltd v Hoogland (1961) 108 CLR 471 at pp 488-489 in which, Windeyer J said:
"It seems that, under the common law system of pleading, when a limitation is annexed by a particular statute to a right it creates, the plaintiff should allege in his declaration that the action was brought within time. On the other hand it is for the defendant to plead the Statute of Limitations as a defence to an action on a common law cause of action, as if he does not it is assumed that he intends to waive it: see Chapple v Durston [(1830) 1 C and J 1 at p 9 (148 ER 1311 at p 1314)]. However, when issue is joined on a plea of the Statute, the burden of proving that the action is within time is on the plaintiff: see cases referred to by Dixon J, as he then was, in Cohen v Cohen [(1929) 42 CLR 91 at p 97)]. And, even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived, either expressly or in some cases by estoppel: Wright v John Bagnall and Sons Ltd. [[1900] 2 QB 240]; Lubovsky v Snelling [[1944] KB 44]."
It is well established that statutes of limitations such as the Limitation Act 1984 (WA) bar the remedy and not the right so that a defendant who relies on the statute must plead it, otherwise he will be presumed to waive it: Chapple v Durstan (1830) 1 Cr & J 1; (1830) 148 ER 1311 at 1314.
Brennan J went on to say in Verwayen at 427 that:
"The time when waiver of a right occurs depends on the relationship between a party possessed of such a right and the party whose interests may be affected by exercise of the right. When the party possessed of the right knows that a new legal relationship is to be constituted between him and the party whose interests are liable to affection by exercise of the right and that the right, if exercised, might affect that new relationship, the party possessing the right must enforce the right before the new relationship is constituted or he will be held to have waived the right. The new relationship is typically created by the pronouncing of a judgment in which the existing rights of the parties are merged or by the making of an order, but it may be created in other ways. However created, it is on or before the constitution of the new relationship that the right must be exercised: the right is not waived until the last moment at which its exercise is capable of affecting the new relationship: see Ward v Raw [(1872) LR 15 Eq 83 at p 85]. Once the new relationship is constituted without exercise of the right, it is immaterial that the relationship would not have been differently constituted had the right been exercised."
Significantly, Brennan J also went on to say at 427 that:
" … a right is waived only when the time comes for its exercise and the party for whose sole benefit it has been introduced knowingly abstains from exercising it , a mere intention not to exercise a right is not immediately effective to divest or sterilize it. Vaughan B. in Chapple v. Durston was precise in speaking of a defendant's failure to plead a time bar not as a waiver but as the foundation for a presumption that the defendant "intends to waive it". Waiver of a time limitation which bars a remedy occurs only when the time for granting the remedy arrives, that is, the moment before judgment. Until that time arrives, the time limitation is not waived. If a party is to be held to an intention to waive the limitation, it can be only by contract or estoppel or, where the intention to waive appears from a failure to plead the limitation, by refusal of leave to amend the pleading (if leave be necessary and refusal of leave be justified)."
His Honour also said at 425:
"It follows that, if the jurisdiction of a court to entertain proceedings is conditioned on the commencement of the proceedings within a specified time, a defendant cannot waive the time requirement and thereby confer jurisdiction on the court. Conversely, where a case is fought on the issue whether a time limitation in a particular statute is or is not a condition precedent to jurisdiction, an argument that another statute overrides the time limitation can be raised on appeal though conceded in the court below: Adams v. Chas. S. Watson Pty. Ltd. [(1938) 60 CLR 545 at pp 547,548]. However, a defence under s.5(6) of the Limitation Act does not create a condition precedent to jurisdiction. It is merely a right conferred on a defendant to defeat a claim brought outside the time limited by the Limitation Act."
This reinforces the view that this case turns first on the question whether the relevant statutory provision had the effect of barring the right to damages or the remedy by way of damages. If the answer to that question is that it has barred the remedy, then the question becomes whether the relevant statutory restriction in terms of time is capable of waiver and, if so, whether in this case, the time limit for filing the s 22 notice had been waived by the respondent.
Deane J at 431 decided Verwayen on the basis of the application of the general doctrine of estoppel by conduct and otherwise was in general agreement with the judgment of Dawson J, including his Honour's conclusion that the appeal should be dismissed. After a review of the authorities, Deane J concluded at 440 that:
"… it appears to me that the Courts of this country should recognise a general doctrine of estoppel by conduct which encompasses the various categories of 'equitable estoppel' and which operates throughout a fused system of law and equity."
At 443 – 446, his Honour stated seven points which were referred to as the "conceptual foundation and essential operation of the doctrine of estoppel by conduct". In essence, these were that:
(1)estoppel by conduct is a doctrine of substantive law to be pleaded and resolved like any other factual issue and binds the parties and their privies, as the basis of primary rights of property and contract;
(2)the central principle is that the law will not permit "unconscientious" departure by one party from an assumption adopted by another party which would cause detriment to the other party in litigation;
(3)the party claiming the benefit of an estoppel must have adopted the assumption so as to place himself at a significant disadvantage if departure was permitted;
(4)the conduct of the estopped party must be such that it would be unconscionable to deny the assumption adopted by the other party as a result of representation; entry into a contract on the basis of a shared assumption; the exercise of rights dependent on the correctness of the assumption; knowledge by one party that the other was relying on the assumption and refraining from correcting him when it was his duty in conscience to do so;
(5)the assumption may be of fact or law, present or future;
(6)the doctrine operates consistently at law and in equity;
(7)estoppel by conduct by itself is not an independent cause of action but may be relied upon either by a plaintiff or a defendant to fashion relief as a defence;
(8)it follows that the doctrine has a degree of flexibility so that relief on the basis of the assumed state of affairs represents "the outer limits" within which the approach to do justice between the parties should be framed.
Significantly, at 449 – 450 Deane J stated that he did not see Verwayen as a case of waiver. His Honour's reasons for that were:
"In Foran v Wright [(1989) 168 CLR 385 at 433 – 435], I expressed the view that the somewhat arbitrary doctrine of waiver is being increasingly absorbed and rationalized by the more flexible doctrine of estoppel by conduct and that, 'in cases ... where the focus is upon action by one party 'upon' what was conveyed to that party by the other party, the applicable primary doctrine should be seen in a modern context as that of estoppel'. Upon reflection, I should have omitted the qualification 'primary' from that statement. In the context of the development of the general doctrine of estoppel by conduct in recent years, it seems to me to be preferable to confine the rubric of 'waiver' within the area of the law in which, notwithstanding the absence of consideration, the act of the alleged waivor is of itself directly operative to 'waive' a right or entitlement without there being any need to establish that the other party has acted upon the basis that the right or entitlement in question was no longer asserted. The principal examples of cases falling within that area are cases of true election (see, generally, the discussion in the judgment of Lord Goff of Chieveley in The 'Kanchenjunga' [[1990] 1 Lloyd's Rep 391 at pp 397-400]). Where a case is said to fall within that area, estoppel by conduct may, if the claim of waiver fails, operate either directly to preclude enforcement of the right allegedly waived or indirectly to preclude departure from a representation that the right had been or would be waived."
Dawson J at 451 expressed the view that, in the context of Verwayen, there was no distinction in principle between waiver and estoppel. As his Honour said, where "not used in the sense of election between mutually exclusive alternatives … [waiver] is generally indistinguishable from estoppel". His Honour noted that this point had been made by Isaacs J in Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 in the context of waiver by election. Dawson J referred at 453 to the judgments of Dixon J in Thompson v Palmer (1933) 49 CLR 507 and Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641, in which the description of estoppel by conduct was equally applicable to common law estoppel and equitable estoppel: see, in particular Thompson v Palmer at 547. The "unjust departure … from an assumption" referred to by Dixon J was applicable both with respect to an existing state of affairs or future conduct.
In Verwayen, the parties were in a legal relationship as parties to the action. The doctrine of estoppel was held by Dawson J at 455 to be confined to parties in a pre‑existing contractual relationship: Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd[1968] 2 QB 839 at 847; and Walton Stores (Interstate) Ltd v Maher (supra). It was on the basis of these authorities that Dawson J concluded that, as litigants, the parties were in a legal relationship which gave rise to mutual rights and duties. The Commonwealth had a statutory right to bar the respondent's action by pleading the statute of limitations. If by its conduct the Commonwealth caused the respondent to assume that it would not exercise its right, departure by the Commonwealth from that assumption would be unconscionable and operate to the detriment of the respondent in reliance on the assumption, the Commonwealth should be estopped from relying on the statute.
In this context of "waiver" of a statutory right, Dawson J said in Verwayen at 456:
"It is commonly said that a person may waive a statutory right in the sense of not relying upon it. In order to waive a statutory right in this way, it must be a personal or private right and must not rest upon public policy or expediency: see Brown v. The Queen [(1986) 160 CLR 171, at p 208]. Provided that it bars a remedy rather than extinguishes a cause of action, a statute of limitations gives rise to a right of that kind and it must be pleaded if it is to be invoked: Re Burge; Gillard v. Lawrenson [(1887) 57 LT 364]. If it is not pleaded, it is said to be waived, but the use of the term 'waiver' in this way exemplifies its imprecision. A waiver of this kind does not amount to an election and does not necessarily give rise to an estoppel."
Dawson J said at 457 that, the appellant having amended its defence to plead the statute of limitations and the respondent having pleaded waiver or estoppel, an issue was raised for trial. His Honour made it clear, however, at 457 that the issue raised was one of estoppel rather than of waiver in some other sense. As Dawson J also said at 457:
"When the term 'waiver' is not being used to describe election or estoppel it may be used loosely to indicate non‑insistence upon a right either by choice or by default. The use of the term in that sense raises a different question, namely, whether a party, having failed to insist upon his right at an appropriate time should later be allowed to do so. In this case, that question was determined when the appellant was given leave to amend its defence."
Dawson J concluded at 462 that, by falsely raising the respondent's hopes, the Commonwealth led him to continue with the action and forgo exploration of a possible settlement, suffering prolonged stress in a case in which he claimed damages which included compensation for a high level of anxiety. The Commonwealth was estopped from insisting on the statute of limitations.
In the result, the appeal was dismissed by a majority comprising Deane, Dawson, Toohey and Gaudron JJ on the basis that the Commonwealth was not free to dispute its liability to the plaintiff because Deane and Dawson JJ held that it was estopped from so doing and Toohey and Gaudron JJ because it had waived its right to rely on either defence. Mason CJ, Brennan and McHugh JJ dissented.
Toohey J concluded at 470 that waiver in the present context involved "election" and, for that reason, differed from estoppel. At 470 – 471 his Honour addressed the questions, "In what circumstances does waiver operate? In particular, when is a defendant precluded from relying upon a defence such as a plea of limitations?" His Honour was careful to point out that this involved no confusion with variation of contract or promissory estoppel. It was regarded as an election by a party between inconsistent rights, or the choice to take a jurisdictional point, plead a particular defence, or take some other step in proceedings, or not to do so. The party may not take up inconsistent positions however.
Toohey J noted at 472 that it was common place to speak of a person "waiving" a right by submitting to the jurisdiction of a court which did not otherwise have jurisdiction, not insisting on implementation of an arbitration clause, not pleading an irregularity, or pressing at trial an argument otherwise available. In that context, Toohey J concluded at 473 that:
"Waiver, in the sense used for the purposes of this appeal, may be found in the deliberate act of a defendant not to rely upon a defence available to him. That is not to say that there must be an intention to bring about the consequences of waiver; rather, the conduct from which waiver may be inferred, must be deliberate. Detriment is not an essential attribute of waiver, though it will often be found as a consequence. Within the adjudicative process at any rate, it is enough that the defendant "renounces" a defence which is available to him and which is there for his benefit."
His Honour concluded at 474 that "waiver" in the sense relevant for the purposes of the particular appeal was not capable of being withdrawn. It was an unequivocal renunciation of the right to rely on the limitation offence.
Gaudron J at 480 – 481 considered the issue whether "waiver" existed independently of estoppel. In Wilson v McIntosh (supra) at 220 the Privy Council approved a statement by Darley CJ in Phillips v Martin (1890) 11 LR(NSW) 153 at 158 that "… a man by his conduct may by his conduct waive a provision of an Act of Parliament intended for his benefit". The waiver of the right to plead the statute of limitations is an obvious example.
Gaudron J also said at 483:
"A party to litigation who has failed to object that a condition attaching to the exercise of jurisdiction has not been satisfied or that the proceedings were irregularly instituted may, by reason of his subsequent participation in the proceedings, be precluded from later raising the defect. See, [for example], Broad v Perkins [(1888) 21 QBD 533]; In re Jones v James [(1850) 19 LJ QB 257]; Moore v Gamgee [(1890) 25 QBD 244]. So too, a litigant may be precluded from raising a matter going to the disqualification of the person constituting the court if, with knowledge of the disqualification, he participates in the proceedings without objection."
The requirement of knowledge was repeated by her Honour at 484 as follows:
"Perhaps there is a principle of wider application, but it is clear that a party to litigation will be held to a position previously taken (that position having been intentionally taken with knowledge) if, as a result of that earlier position, the relationship of the parties has changed. The changed relationship, in the terms used in Phillips v. Martin and approved in Wilson v. McIntosh, constitutes an 'equit(y) which (the other) has ... raised'."
Brennan J made it clear that waiver involves the knowing abandonment of the relevant right, except where the jurisdiction of a Court to entertain proceedings is conditioned on the commencement of proceedings within a specified time. Mason CJ accepted that it was possible for the statutory provisions, the subject of Verwayen, to be deprived of their effect by waiver, although he concluded that the case had not been made out on the facts. Deane J decided the case on the basis that waiver had been subsumed into a general doctrine of estoppel by conduct, pointing out, as has been seen, that "waiver" should be confined to cases where the act of the alleged waiver was of itself directly operative to waive a right or entitlement, without the need for proof that the other party had acted upon the basis that the right was no longer asserted. Dawson J held that there was no distinction in principle between waiver and estoppel. His Honour dealt with the case as one of estoppel rather than waiver in the sense of waiving a defence under a statute of limitations. Toohey J concluded that in the context of Verwayen involved election and for that reason differed from estoppel. Waiver involved a deliberate choice or act by a defendant not to rely on a particular defence or argument. Gaudron J held that a failure to take a particular point or plead a particular defence may be taken to have waived the point.
Gaudron J agreed at 487 with Mason CJ that the substantive doctrine of estoppel permitted a Court to do what is required to avoid detriment and does not, in every case, require the making good of the assumption.
Section 93C is headed "Limit on Powers of Courts". This implies that the limitation is one upon power which is suggestive of a limit upon the jurisdiction to award damages otherwise than in accordance with the statute. The limitation is in the nature of a limitation on the amount and scope of the award of damages at common law where there is a liability established for negligence. The preceding provision of the Act, namely, s 93B is headed Application of this Division and provides that:
"(1)This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if −
(a)the disability was caused by the negligence or other tort of the worker's employer; and
(b)compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22.
(2)This Division applies even if the damages resulting from the negligence or other tort of the worker's employer are sought to be recovered in an action for breach of contract or other action.
(3)This Division does not apply to the awarding of −
(a)damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies;
(b)exemplary or punitive damages; or
(c)damages of a class that is excluded by the regulations from the application of this Division.
(3a)This Division does not apply to the awarding of damages if the disability results in the death of the worker.
(4)A reference in this section to the worker's employer includes a reference to a person for whose acts the employer is vicariously liable."
Section 93A of the Act provides that:
"In this Division −
'AMA Guides' means the edition of the Assessment of Disability Guide published by the Western Australian Branch of the Australian Medical Association Incorporated which is prescribed in the regulations;
'damages' does not include −
(a)any sum required or authorised to be paid under an award or industrial agreement within the meaning of the Industrial Relations Act 1979;
(b)any sum payable under a superannuation scheme or any life or other insurance policy; or
(c)any amount paid in respect of costs incurred in connection with legal proceedings."
In my opinion, negligence, as a form of tort liability, exists primarily to compensate the victim by compelling the wrongdoer to pay for the damage done to the victim: Fleming, The Law of Torts (8th Ed) pp 102 – 104.
The test, or at least one significant aspect of the relevant test, is whether the limitation is one which goes to jurisdiction rather than one which is merely procedural. In my opinion, the defence under s 38 of the Limitation Act 1935 (WA) may be negatived by the operation of the equitable defences of waiver or estoppel in respect of the various periods of limitation which are provided in the Limitation Act. The most common is that in s 38(1)(c) in which actions founded on a contract or tort must be commenced within 6 years of the cause of action arising. The expiry of the limitation period bars the remedy, but not the right. In such a case, the remedy is not barred unless and until the defendant pleads the statute and presents the relevant evidence: Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 at 405 per Donaldson LJ; Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 175 per Malcolm CJ (with whom Kennedy J agreed). The cases referred to include Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27, in which the Court of Appeal of Victoria held that it was no part of a cause of action that time had run under a statute which merely bars the remedy, as is the case under s 38 of the Limitation Act. The plea of the statute in such a case is a plea in confession and avoidance, so that the defendant who pleads the statute is required to plead and prove that the action was commenced outside the limitation period; Pullen v Gutteridge at 76 per Booking, Tadgell and Hayne JJ.
With respect, I agree with the analysis by Heenan J of the decision of the High Court in Verwayen (supra) which has led his Honour to conclude that the character of the statutory defence in Pt IV Div 2 and, in particular, s 93C of the Act are provisions which are procedural in character, having the effect of barring the remedy rather than the right or, as it has been put, "non‑jurisdictional" and, consequently, capable of being met by the doctrines of waiver or estoppel. The effect of the relevant provisions is not to deprive the Court of jurisdiction to award damages in the circumstances of this case, but to place limitations upon the remedy of damages at common law.
In my opinion, however, the difficulty with the application of waiver in the present case is that there was no evidence that the respondent knew at any material time that the applicant's Form 22 had been filed two days late until the point was taken by the Director, some considerable time after the date of filing and after 22 March 2001, when the Review Officer determined that the applicant's relevant level of disability was not less than 16 per cent. It was not the respondent employer who took the point, but the Director of his own motion. There was no evidence that the respondent employer was aware that the Form 22 had been filed out of time. Consequently, in my opinion, there was no basis for the application of the defence or doctrine of waiver as there was no evidence before the Court that the respondent employer knew that the Form 22 had been filed out of time until the point was taken by the Director.
So far as the Director and the respondent are concerned, the applicant has raised for determination the question whether the conduct of the parties, including the Director and the respondent, has had the effect that the failure to file the Form 22 cannot now be relied upon by either the Director or the respondent.
As Heenan J has pointed out, the limitations and constraints imposed by the legislation on the rights otherwise available to the persons whose rights and liabilities are dealt with by the legislation can only abrogate those rights by statutory provisions expressed by clear words or necessary implication: Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 77 ALJR 40. In that case at [11], Gleeson CJ, Gaudron, Gummow and Hayne JJ held that statutory provisions are not to be construed as abrogating important common law rights in the absence of clear words or necessary implication to that effect: Potter v Minahan (1908) 7 CLR 277 at 304 per O'Connor J; and Baker and Campbell (1983) 153 CLR 52; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1993) 179 CLR 427; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501. McHugh J expressed a similar opinion at [43] – [44].
Clearly, the right to claim damages for personal injury caused by the negligence of another is an important common law right which falls into the relevant category covered by the High Court decisions to which I have referred. This was recently confirmed by the High Court in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 78 ALJR 161, which was concerned with the interpretation of the amendments to the Workers' Compensation and Rehabilitation Act 1981 (WA) and the effect of the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) ("the 1999 Act"), s 93D in the context of the Interpretation Act 1984 (WA), s 37(1) and (2).
In July 1998, Dossett applied to the District Court for leave to commence common law proceedings to recover damages in respect of an employment injury. While the application was pending, the 1999 Act received the Royal Assent. This imposed more restrictive conditions on the award of common law damages, but contained transitional savings provisions. The District Court held that the 1981 Act as amended applied to the applicant's application so that the Court had no power to grant leave to commence proceedings under the former provisions. This decision was upheld by the Full Court, but was overruled by the High Court. McHugh J decided the case on the basis that the transitional provisions in the amending act did not override or exclude s 37(1) or (2) of the Interpretation Act 1984 (WA), which applied notwithstanding any express saving provision in the amending act. It followed that the appellant in that case was entitled to proceed with his application under the former provisions. This result was consistent with the decision of the Full Court in Toolan v Metro (Perth) Trust (2001) 25 WAR 1.
In Dossett v TKJ Nominees Pty Ltd (supra) at [59], Kirby J said that nothing in the Workers' Compensation Act either before or after the 1999 Act abolished the appellant's common law rights. All that happened was that the enforcement of those rights was made the subject of procedural conditions both before and after the 1999 Act. Section 93C provided that if Div 2 applied, a Court was not to award damages to a person contrary to the Division. His Honour described at [61] "the procedural condition" for leave in s 93D as "the procedural gateway through which the appellant had to pass before being entitled to commence proceedings for damages in the District Court".
It is accepted that, in general, where proceedings have been commenced without leave, such leave may be granted nunc pro tunc, namely with retrospective effect. A recent example is referred to by Heenan J, namely, Mealing v P Chand [2003] NSWCA 205; (2003) 57 NSWLR 305. That case was concerned with s 151D of the Workers' Compensation and Rehabilitation Act 1987 (NSW), which provided that a person to whom compensation under the Act was payable was not entitled to commence proceedings for damages against the employer more than three years after the date of the injury was received, except with the leave of the Court in which the proceedings are taken. It was held that an extension of time could be granted after proceedings had been commenced without such leave in order to validate the proceedings retrospectively (ie by making an order nunc pro tunc). This course was open because the provision was characterized as "procedural": cf Re Sydney Formworks Pty Ltd (1965) 82 WN (Pt 1) (NSW) 558; [1965] NSWR 646 in which such leave was granted in respect of existing proceedings after the limitation had expired.
Handley JA (with whom Meagher ACJ and Young CJ in Equity agreed) noted that a different construction had been adopted with respect to statutes which in terms required the order granting leave to commence proceedings out of time to be made before a certain date, such as Clarke v Bailey (1993) 30 NSWLR 556. Reference was also made to Bingham v England (1996) 17 WAR 226 as "in the same category". That was a decision on s 7(2)(c) of the Fatal Accidents Act 1959 (WA) in which Kennedy ACJ (with whom Ipp J agreed) at 233 ‑ 234 referring to Clarke v Bailey (supra); Bestobell Overseas Ltd v Carden [1988] VR 891; and Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348, made it clear that the decision was based on the interpretation of s 7(2)(c) of the Act. This provided that an application could be made to the Court for leave to bring an action "or any before the expiration of six years after the death of the person in respect of whose death the cause of action arose". The primary requirement in s 7(1) was that "every action under this Act shall be commenced within 12 months after the death of the person in respect of whose death the cause of action arose". Section 7(2)(d) provided that, if the Court considers that the delay was occasioned by mistake or any other reasonable cause, or that the prospective defendant is not materially prejudiced in his defence or otherwise by the delay, the Court may, if it thinks it just to do so, grant leave to bring the action subject to such conditions as it thinks appropriate.
In Bingham v England (supra) at 233 – 234, Kennedy J dealt with an argument that the words in s 7(2)(c) of the Fatal Accidents Act "at any time before the expiration of six years from the date of death of the person in respect of whose death the case of action arose", referred back to, and placed a time limitation only upon the making of the application, so that if leave were then granted, fresh proceedings could be brought. The identical argument to the contrary had been rejected by Burt CJ in Stevens v Motor Vehicle Insurance Trust [1978] WAR 232 at 234 with whom the other members of the Court agreed. The application for leave had to be brought within the six‑year period. Once that period expired, the cause of action was extinguished. The Court could not, by ante-dating an order, confer upon itself a jurisdiction which it did not otherwise possess: Re Keystone Knitting Mills' Trademark [1929] 1 Ch 92 at 107, 108.
As indicated earlier in these reasons, the Director had no power to extend the time for compliance with the requirement that the applicant produce the necessary evidence of his degree of disability to the Director no later than 14 December 2000. The respondent was not aware that the time limit had not been complied with. It follows that a condition precedent to the exercise of the powers of the Director had not been satisfied. This affected the power of the Director to refer the
matter to a Review Officer. Given the statutory framework under which the Director was operating, his purported reference of the matter to a Review Officer was made without statutory authority and for that reason invalid and incapable of conferring jurisdiction or power on the Review Officer.
In my opinion, in the context of s 93C, compliance with the procedural conditions precedent to the award of damages contained in the relevant provisions in Div 2 to which I have referred is a pre‑requisite to the award of damages. It follows that I would discharge the orders nisi for the writs of certiorari and mandamus.
As previously indicated, however, I have reached the conclusion that, on the facts, the lack of proof of knowledge on the part of the respondent of the relevant facts was fatal to the case asserting waiver against the respondent both in respect of certiorari and mandamus. For those reasons I would discharge each of the orders nisi.
TEMPLEMAN J: In Western Australia there is a restriction on the common law right of workers injured in the course of their employment, to recover damages from their employers. The restriction is imposed by s 93E(6) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). In substance, the subsection provides that damages can be awarded only if:
(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has "a significant disability" and has elected to retain the right to seek damages and the election is registered in accordance with the regulations.
A worker has a "significant disability" if that disability has been agreed or determined to be not less than 16 per cent and that agreement or determination has been recorded in accordance with regulations: s 93E(4).
In the present case, Peter Norman Cross, an employee of Boral Resources WA Ltd ("Boral") claimed to have sustained an injury to his right elbow in the course of his employment in May 1996. Subsequently, Mr Cross received weekly payments of workers' compensation.
Apparently in the belief that his disability was greater than 16 per cent, Mr Cross wanted to elect to retain the right to claim
damages from Boral. On 5 January 2000, he purported to make an election by lodging a Form 25. That was the last day on which it would have been possible to elect, if Mr Cross' disability had been determined (at greater than 16 per cent) and recorded. It was the so-called "termination date" for workers such as Mr Cross, whose weekly payments of compensation had commenced before 5 October 1999, the day on which the Workers' Compensation and Rehabilitation Amendment Act 1999 received the assent: s 32(8) of the Workers' Compensation and Rehabilitation Amendment Act 1999, as amended by s 3 of the Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999.
Mr Cross' degree of disability had not, however, been determined by the termination date: it was in dispute. Mr Cross had referred the dispute to the Director of the Conciliation and Review Directorate on 16 December 1999, pursuant to s 93D(6) of the Act, by lodging a Form 22 and the relevant medical evidence.
On 25 January 2000, the Director rejected Mr Cross' purported election of 5 January. The Director took that course because of Mr Cross' failure to comply with Regulation 19M of the Workers' Compensation and Rehabilitation Amendment Regulations (No 11) 1999. The Regulation provided that the election could not be made unless the degree of disability had been agreed or determined to be not less than 16 per cent. As I have noted above, there had been no such agreement or determination as at the purported election date.
The rejection was fatal to Mr Cross' claim for damages. That is because, by then, it was too late for him to elect, pursuant to s 93E(6) of the Act. This provision applied when the degree of disability was still in dispute on the termination day. It enabled a worker to elect within 14 days after he had been given notice by the Director that an agreement or determination had been recorded. But in order to avail himself of that opportunity, it would have been necessary for Mr Cross to produce the medical evidence relating to his disability "not less than 21 days before the termination day": s 93E(6)(a).
Having regard to s 61(1)(f) of the Interpretation Act 1984, Mr Cross should have produced that evidence to the Director on or before 14 December 2000. But he did not do so. But as I have noted above, the evidence was produced on 16 December.
Despite the lodgement being out of time, the Director acted on it. He implemented the dispute resolution procedures. This culminated in a hearing before a Review Officer, who, on 22 March 2001, determined that the level of Mr Cross' disability was not less than 16 per cent.
The Director wrote to Mr Cross' solicitors on 29 March 2001, to inform them that the determination had been made and that he had received it.
This appeared to entitle Mr Cross to make a further election, which he did on 2 April 2001, within the time period prescribed by s 93E(6).
However, on 20 April, the Director rejected his election on the ground that the form 22 and supporting medical evidence lodged on 16 December 1999 had not been lodged less than 21 days before the termination day.
If, on or about 16 December 1999, the Director had declined to accept the papers lodged on that date (as he should have done), I do not think Mr Cross would have had any ground for complaint. The legislation, although convoluted and the subject of frequent amendments, set clearly ascertainable time limits. Mr Cross does not suggest that either the Director or the Court has any power to relax or extend them. Nor does he suggest that the legislation is invalid: cf Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
I say the Director should have declined to accept the papers lodged by Mr Cross on 16 December 1999, because the date given for the commencement of weekly payments on the Form 22 was "prior to 5/10/99". That being so, it should have been immediately apparent to the Director that Mr Cross could never be in a position to make an election. It is, I think, regrettable that (so far as I can see from the correspondence made available to us), the Director has offered no explanation or apology to Mr Cross for his oversight.
However, Mr Cross focussed his attention on Boral. He contends that because Boral did not take any point about the late lodgement of his Form 22, and then participated in the review proceedings in the usual way, Boral must be taken to have waived the requirement that the form be lodged 21 days before the termination date: particularly as the decision of the Review Officer became final.
Standing in the way of that contention is the decision of this Court in Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223. There, in circumstances not relevantly distinguishable from the present case, Anderson J, with whom Wallwork and Steytler JJ agreed, said, at par 21:
"Counsel for the worker also submitted that failure to observe the time limit prescribed by s 93E(6) is not fatal. He contended that the time limit was merely a procedural rather than a mandatory requirement. Whether this language still means anything in Australia is very doubtful since Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, but I take the submission to be that compliance with the requirements as to when or within what period an election is to be made does not condition either the right to seek damages at common law or the authority of the Court to award damages. This is, of course, a matter of construction and I do not think that the Act can be so construed. The scheme of Div 2 of Pt IV is generally to prohibit courts from awarding damages in work accident cases and then to precisely define the circumstances under which the right to seek damages may be retained. There must be a certain level of disability (specified by reference to exact percentage points), there must be a positive election to retain the right, the election must be made in a prescribed manner and form and it must be made within a specified period of time, the expiration of which is expressed so as to be precisely ascertainable. In other words, if I may borrow Lord Goff's analogy in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 754, the legislation locks the gate to this field of common law damages and then fashions the key which alone is capable of turning the lock."
I have had the advantage of reading in draft, the reasons to be published by EM Heenan J, in which his Honour points out that in Ex parte TNT Australia Pty Ltd, the Court did not examine the criteria by which it may be determined whether the time constraints imposed by s 93E(6) of the Act are jurisdictional in character, or procedural, and hence, arguably susceptible of waiver.
But as Anderson observed, ultimately, the question is one of construction. And here we have, in s 93C of the Act, a jurisdictional limit in the following terms:
"If this Division applies a court is not to award damages to a person contrary to this Division."
This is a reference to Division 2, which imposes constraints on the award of damages at common law. It does so (in part) by providing limitation periods such as that prescribed by s 93E(6).
In my view, it is not necessary to consider the ambit of the constraint imposed by s 93C. It is, I think, sufficient to say that in the present case, the division does apply and that the applicant did not act within the relevant limitation period. It follows that the Court has no jurisdiction to award damages. I respectfully agree with Anderson J (at par 13) that 'neither the consent of the parties nor unauthorised administrative act of the Director can overcome that provision'.
In any event, the Court (even one comprising of five judges) should not depart from an earlier decision unless convinced that the decision was wrong, or unless there is some other compelling reason to do so: see Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, per Steytler J.
I am not persuaded that the decision in Ex parte TNT Australia Pty Ltd was wrong: and I see no other compelling reason to depart from it. Indeed, the Court has no evidence which explains why Mr Cross did not lodge his Form 22 until 16 December 1999. Of course, he had only a relatively small window of opportunity. The Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999, which imposed the time constraints, received the Assent on 5 November 1999. Mr Cross therefore had only a little over five weeks in which to obtain the necessary medical evidence and lodge his Form 22 with the Director. We do not know whether he experienced any difficulty in attending to these matters.
No do we know how Mr Cross became aware of the need to lodge his materials; nor whether he was given any professional advice and if so, whether it was correct. We do not know whether he knew about the possible consequences of late lodgement when the review proceedings were in train. We do not know why he delayed for so long after suffering his injury in 1996, in seeking to ascertain his degree of disability in order to make an election. We do not know whether any others are in a similar position to Mr Cross. In relation to that matter, I note the statement in the letter dated 4 April 2001 from Mr Cross' solicitors to the Director that:
" … we understood at the time that the regulations … were gazetted (retrospectively), you indicated that Form 22's filed in or about 14 December 1999 would continue to be accepted
as complying with the regulations. Can you please clarify if this in fact was a decision made in 1999, or whether your decision was in fact that any Form 22 filed after 14 December 1999 was caught by the provisions referred to in your letter, if the termination date was 5 January 2000."
The Director did not answer the question in his reply to that letter.
In all the circumstances, and for the reasons set out above, I have come to the conclusion that the application should be dismissed.
WHEELER J: The facts of this matter are set out in the reasons of other members of the Court, and I do not repeat them. The argument took a very unsatisfactory course. When the matter was first heard by a coram of three, it appeared that the applicant wished to challenge the validity of reg 19M, which had been the subject of some observations in earlier cases. Once the Court had reconstituted as a coram of five, the applicant withdrew that challenge, and the Court again reconstituted as a court of three. During the course of argument, it appeared that the applicant took issue with the decision in Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223, and we again reconstituted as a coram of five. During the course of argument following that reconstitution, the parties' counsel appeared to me to be somewhat reluctant to grapple with the issues in TNT, and they dealt with that case in a manner which was plainly not well prepared for the issues arising. The intervenor's counsel provided some assistance, but had no notice of the question arising in relation to TNT. I mention these matters because they afford an illustration of the difficulties the Court often faces in such cases, to which I return at the end of my reasons.
I have had the advantage of reading in draft the reasons for decision of Pullin J. I agree with them, save in respect of the issue of waiver, about which I make some brief observations below, and I would therefore discharge the order nisi. I have not attempted, in these reasons, to distinguish between waiver and estoppel: there is considerable overlap between these concepts (see Commonwealth v Verwayen (1990) 170 CLR 394, at 406‑7 per Mason CJ, 449‑50 Deane J, 451 Dawson J, 484 Gaudron J, cf 470 per Toohey J).
As to waiver and estoppel in relation to this division of the Act, in the circumstances of the present case it is my view that no question of estoppel or waiver can arise. That is because, as the reasons of other members of the Court make plain, it was the Director himself who refused to register the applicant's election on the basis of non-
In Re Monger; Ex parte United Construction Pty Ltd (supra) a special court of five Judges was convened in order to hear an anticipated challenge to the earlier decision in Re Monger; Ex parte Dutch (supra) but, in the event, no such challenge materialised. This trilogy of decisions, therefore, stands as authority for the proposition that the adequacy of the medical evidence accompanying a Form 22 referral conditions the jurisdiction of the Director to consider, under s 93D, the dispute about the degree of disability of a worker and, for that matter, also the ability of the Director to refer such a dispute for determination (s 93D(10)). It is enough to say that this is not a question which has arisen in this case which, instead, raises the separate and distinct issue of whether or not there may be a waiver or estoppel preventing reliance upon a late filing of the Form 22. As the authorities already examined all acknowledge that a statutory provision imposing such a time limit, in circumstances where the effect of the statutory provision is to bar a remedy rather than a right, may be waived or may result in a defendant being precluded from raising it later in proceedings, I consider that this direct line of authority should be accepted and applied as there is no direct impediment to that course arising from the decision in Re Monger; Ex parte Dutch (supra) or in the subsequent cases which have applied that decision.
Failure to raise time defence in review proceedings
The question which, therefore, remains is whether or not the failure of the first respondent, as employer, to raise any point or to object to the late filing of the Form 22 before now results in a preclusion, whether by waiver or by estoppel or as a combination of both doctrines, to reliance upon such a defence now. An associated question is whether or not the Director can rely, or should have relied, upon the late filing of the Form 22 at the point where the applicant had made an election under s 93E(3) and (6) and lodged the election for registration. Both of these issues require attention to be given to the opportunities for the first respondent to have taken such a point, and the significance of such a point if it had been taken, earlier in the proceedings.
The process for the determination of whether or not a worker's degree of disability is not less than the relevant level begins with the absence of agreement on that issue between the employer and employee because, it is in the absence of such agreement that the worker may refer the question to the Director (s 93D(5)). The referral which may then take place must be accompanied by medical evidence indicating, in the medical practitioner's opinion, that the degree of disability is not less than the relevant level. As Re Monger; Ex parte Dutch (supra) has decided, this is a substantive requirement which, if not fulfilled, will vitiate the attempted referral. Upon receipt of a referral the Director is to notify the employer (s 93D(7)). The form of notification is prescribed by the Regulations (reg 19J(2)) and is to be accompanied by a copy of the medical evidence produced to the Director under s 93D(6). The prescribed notification form, Form 23, gives notice that the question whether the worker's degree of disability is, or is not, less than the relevant level has been referred to the Director, Conciliation and Review Directorate, for consideration and is accompanied by a copy of the medical evidence provided by the worker. It informs the employer of the need to consider the worker's degree of disability and to object within 21 days if the employer considers that it is less than the relevant level. The standard form appearing in the Regulations does not contain any provision for stating when the referral by the worker to the Director was made and there is no evidence in the present proceedings to suggest that the employer was notified of the date of referral at this point. Nor is the evidence clear about precisely what happened in this case after the referral to the Director, except for showing that the employer disputed the alleged disability under s 93D(8) within time.
The procedure to be followed in such circumstances is for the dispute to be considered by the Director and, in the absence of agreement, for it to be referred by the Director for resolution under the provisions of Pt IIIA. However, the evidence does show that a review was conducted by a Review Officer on 6 March 2001 and an order made on that date determining that the relevant level of disability was not less than 16 per cent. That order must, therefore, have been made under s 84ZF. The order was made after hearing the parties and constituted a binding determination in respect of which a limited right of appeal under s 84ZN(2) existed. Subject to that limited right of appeal, the decision or order of the Review Officer was not open to question or review in any court and the proceedings before the review officer could not be restrained by injunction, prohibition or other process or proceedings in any court or by removal by certiorari or otherwise in any court – s 84ZN(1). It has been held that, in certain circumstances, such a determination on a review, if in truth "final and binding", will give rise to an issue estoppel between the parties – see Waddington v Silver Chain Nursing Association (1998) 20 WAR 269 and United Construction Pty Ltd v Maketic [2003] WASCA 138. One of the consequences of such a decision being final and binding and giving rise to an issue estoppel is that it cannot later be challenged on the basis of any ground or cause which could have been raised before the decision maker at the time the particular issue was being decided – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The determination of such a dispute by the review officer may include the determination of a question of law, s 84ZE(b); s 84ZN(2) and r 12(2)(d) of the Workers' Compensation (Conciliation and Review) Rules 1994 and written reasons for decision of the review officer may be demanded – s 84ZI of the Act.
In my opinion it follows from these provisions, and the nature of the dispute determination by the Review Officer, that any question of law which any of the parties to the dispute considers will or might affect the proceedings, or the entitlement to a determination, should be raised by that party in the course of these review proceedings and, if not then made, that omission will not detract from the finality of the decision of the review officer.
As well as having the opportunity to raise questions of law affecting a worker's entitlement to a determination by a review officer of the existence of a particular degree of disability, at the hearing before the review officer, the employer or the worker has other opportunities to take legal objections to the capacity of the Director to refer a dispute about a degree of disability under s 93D. For example, if the objection goes to a matter of the jurisdiction of the Director to receive or entertain the referral certiorari may lie, as demonstrated by the decision in Re Monger; Ex parte Dutch (supra) although, once the referral had got as far as a proceeding before a Review Officer under r 3(a) of the Act, it seems that certiorari or other judicial review will then no longer lie – s 84ZN(1).
In the present case, therefore, the fact that the degree of disability was determined by an order made by the Review Officer under s 84ZF, and the terms of that order of 6 March 2001, each reveal that the dispute about the level of disability was determined after hearing the parties and after the procedures followed as required by s 93D(9) and (10) and Pt IIIA of Div 3 of the Act had been applied. It is evident that choices may well be made by a party to such a dispute about whether or not an objection in point of law might be taken to the determination of a dispute about the level of a worker's disability in the course of that procedure. For example, an employer who considers that he has a strong case on the merits for establishing that the worker's disabilities were less than the relevant level claimed may decide that the more advantageous course for him to follow is to contest the dispute on the merits, rather than take objections in the nature of points of law about the entitlement of the worker to seek a referral or to any remedy which might flow from the worker's success on the resolution of the dispute referred. It would be difficult to accept that if, for tactical reasons, a party to such a dispute withheld from raising a point of law, which might have been determined in his or her favour, once a binding decision from the Review Officer is given, that objection in point of law can thereafter be raised at a further stage in the progress of the claim. A decision to decline to make such a legal objection for tactical grounds at that stage would seem to bear all the hallmarks of a waiver by the party withholding the objection, the result of which would prevent the objection being raised later.
In this case, however, there is no evidence to suggest that such a deliberate tactical decision was made by the respondent but the point has not been addressed because the record reveals that, when declining to register the election under s 93E(3), (4) and (6) the Director treated the late production of the medical evidence required under s 93D(6) [that is, the filing of Form 22] as the only determinative factor and, as such, decisive in denying the applicant's entitlement to make an election or to have it recorded. Because of the conclusion which I have reached that, non compliance with the time limits prescribed by s 93E(5) and (6) can be waived by an employer or that circumstances can arise which will estop or preclude the employer from relying upon such a statutory defence, it follows that the Director's consideration of the application to register the election of this applicant was erroneous in point of law in failing to consider, and if necessary, to investigate the possibility of such a waiver, estoppel or other preclusion which the applicant contends has occurred. If that were to be investigated as part of the duty resting upon the Director in deciding whether or not, notwithstanding the expiration of the statutory time limit for making an election, the circumstances prevented the employer from resisting an election on that ground, more evidence about this aspect of the case may have emerged. Such evidence might include evidence which may have compelled a finding that there had been a deliberate tactical decision by the first defendant not to raise such a legal point at the hearing for the determination of the level of disability. That, if it occurred, would show a deliberate and positive waiver to which the first respondent should be held.
It would seem, therefore, that the least relief which the applicant should obtain in the present proceedings is an order for mandamus to compel the Director to consider fully, and in accordance with the law which accepts that the statutory time limits can be waived or that circumstances will preclude a party from relying on them, whether in this case the applicant is entitled to make the election which he has attempted under s 93E(3)(b) and (6) and have that election recorded. But as I later explain, the legislation does not contemplate that the Director should ever exercise such an adjudicative role.
Even so, if the record now before the Court shows either, that there is no such possibility of any waiver or preclusion being established or, alternatively, that such a waiver or preclusion has clearly occurred, then an order in the nature of mandamus requiring the Director to reconsider the matter according to law would be superfluous because this Court can, and should, determine the matter finally either against, or in favour of, the applicant – see s 24(7) of the Supreme Court Act 1935.
At this point it is convenient to direct attention to the role of the Director once he had received the applicant's election with a request that it be registered in accordance with s 93E(3) and (6). There is no provision in the Act or regulations which expressly empowers the Director to refuse to register such an election. Insofar as this issue is dealt with at all, the indications are to the contrary because reg 19M of the Workers' Compensation and Rehabilitation Regulations (1982) provides:
"19M Election to retain right to seek common law damages
(1)An election under section 93E(3)(b) of the Act –
(a)is made by completing an election form in the form of Form 25 in appendix I and lodging it with the Director; and
(b)cannot be made unless –
(i)it is agreed that the degree of disability is not less than 16%; or
(ii)it is determined that the degree of disability is not less than 16%.
(2)If it is agreed that the degree of disability is not less than 16% the election form is to be accompanied by Form 24 in appendix I unless an agreement as to the degree of disability for the purpose of section 93E(3)(a), (4) or (9) of the Act was recorded under regulation 19K before the lodgement of the election form.
(3)If it is determined that the degree of disability is not less than 16% the election form is to be accompanied by evidence of the determination unless a determination of a dispute as to a degree of disability was recorded under regulation 19L before the lodgement of the election form.
(4)Subject to subregulation (5), on the day on which the Director receives the election form the Director is to –
(a)record
(i)under regulation 19K(2)(a) the agreement (if any) accompanying the election form; or
(ii)under regulation 19L(2)(a) the determination (if any) accompanying the election form;
(b)register the election in a register kept for that purpose; and
(c)complete the relevant section of the election form and give a copy of it to the worker and the employer.
(5)The Director may refuse to register an election if not satisfied that the worker has been properly advised of the consequences of the election.
(6)This regulation applies to an election under s 93E(3)(b) of the Act that is commenced on or after the day on which the Workers' Compensation and Rehabilitation Amendment Regulations (No 11) 1999 came into operation."
On the face of it, therefore, when presented with an election in the proper form (Form 25) showing a determination of a level of disability of more than 16 per cent, the Director is required to register it in accordance with the Act. But, in my opinion, this should not be regarded as an obligation without exception because, plainly, if the election were obviously a forgery, or otherwise fraudulent, the Director would not be required to register it. But, in the absence of exceptions of that character there does not seem to be any scope for the Director to refuse to register an election on the basis of the existence, or supposed existence, of a legal objection which might have been, or might still be, raised by one or other of the contending parties. Indeed, it is most unlikely that Parliament ever intended to commit decisions of this nature, bristling with questions of law, to the Director. It is far more consistent with the structure of the amending legislation that such questions, if they are open or if they arise, should be dealt with by a Review Officer at a hearing where the parties attend, may be legally represented if leave is granted, and from whose decision a limited right of appeal exists.
This is but another consequence of the fact that disputes of these kinds are disputes between private parties concerning the nature and extent of their mutual private rights and duties and, as such, where the parties themselves are expected to conduct their causes according to their own chosen grounds and where each is capable of waiving rights, entitlements or defences which it may possess and where each party will be bound by his or her conduct of the dispute. For example, if there had been a clear and deliberate waiver of a statutory time limit defence by an employer then, when an ensuing determination of a level of disability was made in circumstances giving the worker a prima facie right to register an election, it would be inconsistent with, and repugnant to, the rights of the parties arising from such a waiver, for a Director to refuse to give effect to a determination of their rights which was the product of their choice of grounds upon which the dispute between them was to be determined. There can be no public interest in refusing to give effect to an adjudication of the rights between a contending worker and his employer, concerning a dispute over a level of the employee's disability, conducted in accordance with the issues of fact or law which the disputants present for decision.
It follows that I consider that the Director was in error in refusing to register the election, in the absence of an objection on the grounds of late filing of the Form 22 raised by the employer before the determination of the level of the disability by the order made under s 84ZF.
Now, however, the respondent seeks to advance that objection where it has been raised by that employer for the first time in the proceedings now before the Court. Whether the employer may now do so seems to me to depend on whether or not there is a clear case for or against a waiver or preclusion. Failing which, as already indicated, the remedy to be given by this Court should be an order in the nature of mandamus recognising the final nature of the decision by the Review officer, which the Director is obliged to recognise.
The passages already cited from the judgments in the Commonwealth v Verwayen (supra), especially the discussions by Brennan J at 424 – 426 and McHugh J at 497, mean that in the present case the respondent employer had the opportunity for raising any objection, including any point of law about the entitlement of the applicant to refer the question of the extent of his disability under s 93D(5) before, or at, the hearing of the determination of that dispute by the Review Officer under Pt IIIA Div 3. That determination was made after a hearing which led to the order made under s 84ZF. No such point of law relating to a statutory time limit was raised by the respondent, and the decision of the Review Officer has since become final in the absence of any appeal to the Compensation Magistrate under s 84ZN. I consider that the respondent is now precluded from raising, or attempting to rely on, the statutory time limit as a basis for impeaching the decision of the Review Officer, the election by the applicant or his lodgement of the election with the Director for registration. It is a sufficient ground for this conclusion that the respondent had an opportunity to raise the statutory time limit as an objection before, or during the course of, the proceedings before the Review Officer but failed to do so, the more so, because the decision of the Review Officer has since been rendered final.
It is, of course the case, that it is the making of an election out of time which is prohibited by s 93E(5) and that, in the circumstances of this case, an election could not be made or registered until after a determination of the dispute about the level of disability had been decided by a Review Officer. However that does not, in my view, mean that any point concerning the statutory time limit for making the referral can be left open until after the determination of the dispute by the Review Officer but before the registration of the election. This is because the time limit imposed under s 93E(6)(b), makes the extension of time available under that section dependant upon the date when the medical evidence under s 93D(6) was provided (that is, when the Form 22 was filed) and in this case, as always, the date of filing of the Form 22 was known or was ascertainable long before the determination by the Review Officer. In other words, in this and in any comparable case, the late filing of the medical evidence relied upon by the applicant, as required by s 93D(6), was a point which could and should have been taken at the hearing of the dispute before the Review Officer. If then taken and successfully established, it would have resulted in the worker's claim for that determination being dismissed or rejected.
Counsel for the Attorney General, intervening, however submitted that even if the Director were now to register the applicant's election the non‑compliance with the time limit imposed by s 93E(6)(a) would remain so that the election, although registered, would not be one made "in the prescribed manner" – s 93E(3)(b). This would mean, so the submission ran, that if and when the applicant commenced an action for damages against his employer in the District Court of Western Australia, or any other court of competent jurisdiction, the employer would be able to plead that the court could not make an award of damages because the election was not made in the prescribed manner (s 93E(3)(b)) and that to do so would be contrary to Pt IV Div 2 of the Act – s 93C. Further, it was submitted, this would be an unanswerable defence and would lead inevitably to the applicant's case for damages failing or, perhaps, being struck out on the trial of a preliminary issue or on the defendant's application for summary judgment. The next step in the submissions advanced on behalf of the Attorney General was that, in such circumstances, this Court should decline to grant prerogative relief in the form of mandamus or certiorari in the exercise of the court's undoubted discretion to withhold such remedies because no benefit could be derived by the plaintiff in obtaining such relief and to grant them would be pointless in view of the inevitable fate of the proposed claim.
Obviously, these submissions proceed on the premise that an objection to the efficacy of the election, on the grounds that the time limits fixed by s 93E(6)(a) had not been satisfied, was still open and could be taken in the anticipated District Court proceedings. But I have concluded that such an objection should have been taken in the proceedings before the Review Officer under Pt IIIA Div 3 at the hearing before the decision under s 84ZF was made. Once that decision has been made, I do not consider that the objection can be made again, or could be made for the first time if the opportunity was not taken to do so on that occasion. On this basis, therefore, it would not be open to the employer to raise a defence in the anticipated District Court proceedings that the election which had been made and registered under s 93E(3)(b) was ineffective or not made in the prescribed manner. Consequently, a decision of this Court to issue a mandamus to the Director to register this election would not be futile or pointless and there would be no reason to exercise the discretion of the court to withhold such relief. Furthermore, a decision by this Court to issue mandamus to the Director in these circumstances, based on the conclusion that the respondent had waived any right to object to the making and registration of an election by the applicant under s 93E(5)(b) would itself be a final judgment binding on these parties. Consequently, the issue of the effectiveness of the election on these grounds could not be raised or contested again by either of the parties in the anticipated District Court proceedings or elsewhere.
Re Monger; ex parte TNT Australia Pty Ltd [2002] WASCA 223
At the hearing of this application in March 2004 counsel for the respondent employer submitted that an earlier decision of this Court, Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223 had determined that there could be no waiver by the parties of the procedural requirements prescribed by Pt IV Div 2 of the Act and, in particular, of the time limits for making an election by a worker fixed by subs 93E(5) and (6). In that case the Full Court (Wallwork, Anderson and Steytler JJ) held that, despite the consent of the worker and the employer to the Director accepting and registering an election to retain the right to seek damages at common law made by the worker after the termination day, that election could not stand and was ineffective. The decision of the court was to issue a writ of certiorari to quash that decision of the Director. Wallwork and Steytler JJ agreed with the reasons for decision of Anderson J who, on this issue, said (at [21]):
"Counsel for the worker also submitted that failure to observe the time limit prescribed by s 93E(6) is not fatal. He contended that the time limit was merely a procedural rather than a mandatory requirement. Whether this language still means anything in Australia is very doubtful since Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, but I take the submission to be that compliance with the requirements as to when or within what period an election is to be made does not condition either the right to seek damages at common law or the authority of the court to award damages. This is, of course, a matter of construction and I do not think that the Act can be so construed. The scheme of Div 2 of Part IV is generally to prohibit courts from awarding damages in work accident cases and then to precisely define the circumstances under which the right to seek damages may be retained. There must be a certain level of disability (specified by reference to exact percentage points), there must be a positive election to retain the right, the election must be made in a prescribed manner and form and it must be made within a specified period of time, the expiration of which is expressed so as to be precisely ascertainable. In other words, if I may borrow Lord Goff's analogy in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 754, the legislation locks the gate to this field of common law damages and then fashions the key which alone is capable of turning the lock.
I can see no basis for contending that a purported election made out of time under subs (6) is any more effective than would be a purported election made out of time under subs (5)."
In Re Monger; Ex parte TNT Australia Pty Ltd (supra) the election which the worker purported to make and to have registered with the consent of the employer followed on an agreement between them that the worker's degree of disability was more than the 30 per cent threshold prescribed by subs 93E(3)(a). In the present case the election purported to have been made by this applicant which he seeks to have registered by the Director follows on from a determination by a Review Officer that the applicant has a significant disability after resolution of the dispute under the provisions of Pt IIIA. However, these differences between the facts in the present case and those examined by the court in Re Monger; Ex parte TNT Australia Pty Ltd (supra) do not provide any basis to distinguish the application at the reasoning in that case. It is necessary, therefore, to proceed on the footing that it has been decided by this Court that there can be no consensual waiver of the time limits prescribed by s 93E(5) and (6). However, counsel for the applicant submitted that this Court should not follow the decision in Re Monger; Ex parte TNT Australia Pty Ltd (supra) in the present case and counsel for the Attorney General referred to the well‑settled considerations upon which this Court should observe when asked to reconsider or to depart from one of its previous decisions. As these have been fully set out in the recent decision of Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [32] ‑ [35] it is unnecessary to repeat them here.
It is, therefore, necessary to consider the conclusion reached in Re Monger; Ex parte TNT Australia Pty Ltd (supra) that there can be no waiver by the consent of the parties of the time limits prescribed by s 93E(5) and (6) of this Act. The passage previously cited from the judgment of Anderson J in that case rejected the submission, made by counsel for the worker, that the constraints upon the award of common law damages imposed by Pt IV Div 2 of the Act were procedural and not mandatory and questioned whether that distinction remained significant at present times. The reference to Lord Goff's analogy in Mannai Investment Co v Eagle Star Life Assurance Co Ltd [1997] AC 749 that the legislation locks the gate to this field of common law damages and then fashions the key which alone is capable of turning the lock can only indicate a conclusion that Anderson J was of the view that the constraints upon the award of damages were not procedural and that compliance with the statutory procedure was mandatory and incapable of waiver. However, the principle that where the existence of a statutory right depends upon the fulfilment of a condition precedent, a person entitled to insist on the fulfilment of that condition may dispense with its compliance, unless it is enacted for the benefit of the public, cannot be doubted in the light of the decision in Commonwealth v Verwayen (supra).
There was no examination by the court in Re Monger; Ex parte TNT Australia Pty Ltd (supra) of the criteria for determining whether or not this statutory condition or available defence was of such a procedural character rather than of a jurisdictional character. For the reasons previously canvassed, the application of these established and accepted principles leads to the conclusion that the constraints upon the award of common law damages imposed by Pt IV Div 2 of this Act are procedural and not jurisdictional. Furthermore, there is the recent decision of the High Court in Dossett v TKJ Nominees Pty Ltd (supra) where Kirby J concluded that these constraints in this Act were only of the procedural kind and did not abolish or eliminate the right to damages as distinct from modifying the occasions in which a court, bound to give effect to this legislation, could award damages.
The case of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (supra) was a case dealing with the ability of a tenant, pursuant to a break clause in a lease, to give an effective notice to determine the lease under contractual provisions. As I read the speeches of their Lordships, the decision does not deal at all with the question of whether statutory provisions relating to causes of action are procedural or substantive or whether they can be waived by the actions of a party or parties for whose benefit they were established. Lord Goff was in dissent and the passage in his speech adapted in Re Monger; Ex parte TNT Australia Pty Ltd (supra) does not seem to be anything more than an elegant metaphor for expressing his Lordship's view of the facts in that case. With respect, I do not consider that it can, in any degree, be treated as determinative or persuasive on the issue of whether or not a time limit imposed by s 93E(6) can be waived or whether it is procedural rather than jurisdictional.
Nor does the decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 undermine or reject the distinction between procedural and jurisdictional statutory defences that has been established in the earlier authorities nor does it determine whether or not a party can be precluded from relying upon such a defence because of waiver or estoppel. That was a case concerning whether or not the Australian Broadcasting Authority had properly performed its functions in determining standards to be observed by commercial television broadcasting licensees relating to the Australian content of programmes. It was held by McHugh, Gummow, Kirby and Hayne JJ that an act done in breach of a condition regulating the exercise of a statutory power was not necessarily invalid. Whether it was invalid depended upon whether it was a purpose of the legislation to invalidate any act done in breach of a condition. It was decided that it was not a purpose of the Broadcasting Services Act 1992 (Clth) that a breach of s 160(d) was to invalidate any act done in breach of that section and, therefore, acts done by the Australian Broadcasting Authority in breach of s 160(d) were not invalid. I do not consider that anything in Project Blue Sky (supra) affects or detracts from the accepted principles, previously examined, for determining whether provisions such as these constraints upon the award of common law damages are procedural or jurisdictional, or as leading to the conclusion that time limits imposed by s 93E(5) and (6) cannot be waived.
It therefore appears, with all respect, that the decision in Re Monger; Ex parte TNT Australia Pty Ltd (supra) to the effect that s 93E(6) was not procedural in character but, rather, was mandatory and incapable of waiver was reached without regard to earlier decisions of the High Court of Australia directly relating to the issue for decision. As was said in Archer v Howell (1992) 7 WAR 33, a case which rests on an unstated assumption or, as the text books describe it, an assumption sub silentio, cannot constitute a binding precedent – see Malcolm CJ at 46. For this reason I do not consider that this Court can or should accept the decision in Re Monger; Ex parte TNT Australia Pty Ltd (supra) as authoritatively determining that the provisions of s 93E(5) and (6) of the Act are substantive or jurisdictional rather than procedural or that they are incapable of waiver in certain circumstances. As this is legislation of widespread and frequent application affecting every employee in this State who may wish to bring a claim for damages for personal injuries against his or her employer for alleged negligence, breach of contract or breach of statutory duty, I consider that it is most important that the court should not perpetuate error but should apply what it determines to be the correct legal principle.
It therefore follows, that the respondent is now precluded from relying on the statutory defence available under s 93E(6) to assert that the applicant's election under s 93E(3)(b) and (6) was made late. That being the case, and for reasons canvassed in [189]‑[190] above, it also follows that the Director was in error in refusing to register the applicant's election because of an objection which the respondent was not then, and is not now, entitled to maintain. As the ground of the objection existed for the benefit of the private interests of the first respondent, there is no basis upon which the Director was entitled to rely upon that ground to refuse registration of the election at his own initiative. The situation, therefore, is that the applicant made an election to preserve his common law rights under s 93E(3)(b) and (6) and presented that election for registration by the Director in the prescribed manner. As there was no reason, in the particular circumstances, why registration of the election should not have been recorded by the Director, the Director failed to carry out the duty cast upon him by the Act and regulations to register the election. As the registration of the election is an indispensable condition for the applicant to succeed in obtaining an award of damages in common law proceedings if, otherwise, he can establish liability against the respondent to the requisite degree – s 93E(3)(b), this means that the applicant has established a failure by the Director to perform a duty to register the election, which arose in these circumstances. A writ of mandamus should issue against the Director to compel him to register the election, even though, in this case it was made late.
48
43
7