St John of God Health Care Inc v Austin

St John of God Health Care Inc sought review of a decision of the Workers' Compensation and Injury Management Commission of Western Australia, which had awarded damages to Mr Austin, a former employee, for a compensable injury. The primary issue was whether Mr Austin was required to make an election under s 93K(4)(c)(i) of the Workers' Compensation and Injury Management Act 1981 (WA) prior to initiating proceedings, and if the word "within" in that section meant before or on the date of initiating proceedings. A further issue was whether the Court of Appeal had the power to make a nunc pro tunc order or declaration where a plaintiff failed to comply with the procedural requirements of s 93K(4)(c)(i) of the Act.

The Court of Appeal held that the statutory requirement for Mr Austin to make an election prior to initiating proceedings was mandatory, not directory. The Court also found that the word "within" in s 93K(4)(c)(i) of the Act meant before the date on which proceedings were commenced. The Court rejected the argument that it had the power to make a nunc pro tunc order or declaration to cure a failure to comply with the mandatory procedural requirement of s 93K(4)(c)(i) of the Act. The appeal was dismissed.