Riseley v Valentine's Service Centre Pty Ltd

[2011] WADC 90

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   RISELEY -v- VALENTINE'S SERVICE CENTRE PTY LTD [2011] WADC 90

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   23 MAY 2011

DELIVERED          :   9 JUNE 2011

FILE NO/S:   CIV 2603 of 2009

BETWEEN:   TONY RISELEY

Plaintiff

AND

VALENTINE'S SERVICE CENTRE PTY LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia - Application by defendant for summary judgment - Workers' Compensation and Injury Management Act 1981 s 93K(4)

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr J Myers

Defendant:     Mr M Greenland

Solicitors:

Plaintiff:     Peter J Griffin & Co

Defendant:     Greenland Legal Pty Ltd

Case(s) referred to in judgment(s):

Nil

1. DEPUTY REGISTRAR HARMAN:  The plaintiff's claim is for damages for loss arising from personal injury sustained during the course of his employment with the defendant.  Accordingly, it would fall for consideration under the provisions of the Workers' Compensation and Injury Management Act 1981. 

2. The defendant presently applies for leave to apply for summary judgment and for summary judgment.  In each of the applications it carries the onus of persuasion.  On the application for leave, the defendant seeks a discretionary remedy.  On the substantive application the test that applies is whether the court could award a remedy to the plaintiff in the event that he established each of the allegations of material fact in his pleading. 

3. The considerations that relate to the exercise of discretion are the merits of the substantive application; the prejudice to the parties in the event that the application was either granted or not granted; the extent of the delay; and the reasons for the delay. 

4. According to O 16 r 1 an application for summary judgment by a defendant may be made within 21 days of the date of the appearance.  The date of the appearance is not specified although it bears the date 23 October 2009.  The application was filed on 23 March 2011.  The defendant's solicitor in his affidavit of 23 May 2011 deposes that it was not until 21 March 2011 that he noticed that the writ had been issued before the election was registered and he then checked the wording of s 93K(4)(c)(i). 

5. It is as follows:

   (4)Damages in respect of an injury can only be awarded if -

   (a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and

   (b)the Director registers the election in accordance with the regulations; and

   (c)court proceedings seeking the damages are commenced within -

   (i)the period of 30 days after the Director gives the worker written notice that the Director has registered the election; or

   (ii)any further time provided for in the regulations to allow for things to be done before court proceedings are commenced;

   and

   (d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.

6. The plaintiff accepts the explanation given by the deponent but opposes the application for leave on the basis that the plaintiff would be prejudiced in the event that leave was granted in that had the application been made within time, it would have been open to the plaintiff to commence proceedings within the period specified in s 93K(4)(c)(i).  As to that proposition, I note that the writ was issued on 1 September 2009.  According to an earlier affidavit of the defendant's solicitor, the plaintiff's election under s 93L of the Act was registered on 20 November 2009.

7. It follows that had the defendant made the application within time, it would have been open to the plaintiff to commence proceedings in accordance with the election within the period of 30 days from the date of registration of the election. 

8. In the event that the application for leave is not successful, the prejudice suffered by the defendant would be that the action may proceed and generate costs that may not ultimately be recoverable from the plaintiff despite the prospect that it would be awarded the costs. 

9. As to the substantive issues, in my opinion they come down to questions of interpretation of the provisions of s 93L and s 93K(4).  Those provisions would need to be evaluated in order to determine the appropriate impact of the statutory requirement to elect to retain the benefit of a right to claim common law damages.  I appreciate that on a plain reading of s 93K(4)(c)(i) the defendant's case is relatively straightforward.  Nonetheless, the issue for consideration in each part of the application is whether it would be open to the plaintiff to put a case or cases for relief founded upon particular interpretations of the statutory provisions.  In my opinion it would be wrong to exclude those prospects. 

10. Accordingly, the result is that I will refuse to grant leave to bring the application and in any event, would refuse the substantive application.