Taylor v Centennial Newstan Pty Ltd

Case [2009] NSWCA 276

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40243/08

HEARING DATE(S):
25 June 2009

JUDGMENT DATE:
3 September 2009

PARTIES:
Roy Taylor (Appellant)
Centennial Newstan Pty Ltd (Respondent)

JUDGMENT OF:
Beazley JA Giles JA Basten JA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 122/07

LOWER COURT JUDICIAL OFFICER:
Sidis DCJ

LOWER COURT DATE OF DECISION:
13 May 2008

COUNSEL:
B Dooley SC;  P O’Rourke (Appellant)
L King SC;  P Menary (Respondent)

SOLICITORS:
Whitelaw McDonald (Appellant)
Lander and Rogers (Respondent)

CATCHWORDS:
STATUTES – interpretation – the Workers Compensation Act 1987, s 151A(3)(b) – apparent oversight by legislature in the drafting of legislation – whether the court is entitled to substitute or change the words of a statutory provision in such circumstances – whether the phrase “District Court” should be substituted for “Compensation Court” where appearing in s 151A(3)(b)
WORKERS' COMPENSATION – proceedings to claim compensation – statutory regime applicable to coal miners different to the statutory regime applicable to non-coal miners – statutory requirement to elect whether to claim for common law damages or permanent loss compensation – whether a plaintiff had made that election

LEGISLATION CITED:
Acts Interpretation Act 1901 (Cth), s 15A
Compensation Court Repeal Act 2002, Sch 7
Courts Legislation Amendment Act 2004
District Court Act 1973, Pt 3, Div 8A
Dust Diseases Tribunal Act 1989
Income Tax Assessment Act 1936 (Cth)
Interpretation Act 1987
Police Regulation (Superannuation) Act 1906
Police Service Act 1990
Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987
Workers Compensation Act 1987, s 3; s 151A(3); Sch 6, Pt 18, cl 3; Sch 6, Pt 18C
Workers Compensation Legislation Amendment Act 2000 No 87
Workers Compensation Legislation Amendment Act 2001 No 61, Sch 6
Workers Compensation Legislation Further Amendment Act 2001 No 94, Sch 1.1
Workplace Injury Management and Workers Compensation Act 1998, s 4; s 105; Part 5

CATEGORY:
Principal judgment

CASES CITED:
Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154
Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Director of Public Prosecutions v Fowlers [1984] HCA 48; (1984) 154 CLR 627
Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272
Humphreys v Mulco Tool & Engineering Pty Limited [2006] NSWCA 355
Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109
James Hardie & Coy Ltd v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53
Jones v Wrotham Park [1979] 1 All ER 286; [1980] AC 74
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214
Newcastle City…

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Details
AGLC
Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276
Case
[2009] NSWCA 276
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between a coal miner, the appellant, and his employer, the respondent, regarding a claim for common law damages for injuries sustained during employment. The appellant had initially commenced proceedings seeking permanent loss compensation under the *Workers Compensation Act 1987* (NSW) but subsequently discontinued those proceedings and filed a new claim for common law damages. The respondent sought to strike out the common law claim, arguing that the appellant had made an election to pursue permanent loss compensation by commencing the initial proceedings, as stipulated by s 151A(3)(b) of the Act. The appeal was heard by the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was the interpretation of s 151A(3)(b) of the *Workers Compensation Act 1987* (NSW). Specifically, the court had to determine whether the provision, which referred to the "Compensation Court," applied to proceedings commenced in the District Court's Coal Miners’ Workers Compensation List, given that the Compensation Court had been abolished. This involved considering whether the District Court, in exercising its residual jurisdiction, effectively stood in the place of the former Compensation Court for the purposes of the election provision, or if the literal wording of the statute precluded such an interpretation.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court reasoned that the approach taken by the primary judge, which involved interpreting "Compensation Court" to mean "District Court" based on the perceived legislative intention, was not permissible according to established principles of statutory interpretation. The court found it unnecessary to definitively determine whether a court could substitute words in a statute based on an apparent legislative oversight. The court concluded that the commencement of proceedings in the District Court's Compensation List did not constitute an election under s 151A(3)(b) as it was worded. Consequently, the respondent's motion to strike out the common law proceedings was dismissed.

Orders

Orders of the court

1. Leave to appeal granted; 2. Allow the appeal; 3. Set aside the orders of the primary judge; 4. Order that the respondent's notice of motion filed in the District Court be dismissed with costs; 5. Order that the respondent pay the appellant's costs of the appeal. Direct that the respondent have a certificate under the Suitors' Fund Act 1951, if so entitled.

04/09/2009 - amended case name - Paragraph(s) coversheet

Background

Background to the litigation

As those familiar with workers compensation and associated legislation in this State know too well, this body of legislation has been subject to massive reform and amendment in the last two decades. The result of these changes has given rise to numerous problems of statutory construction. This case provides another challenge. Background facts During the course of his employment as a coal miner, the appellant had suffered a number of injuries including injuries suffered whilst employed by Elcom Collieries and a back injury sustained on 27 April 2004 whilst employed by the respondent at its Newstan Colliery. He commenced proceedings against both employers for permanent loss compensation, but then changed course. It was that change of course which has given rise to the issue agitated on the appeal. The appellant first filed proceedings on 14 March 2007, when he filed a statement of claim in the District Court Coal Miners’ Workers Compensation List (the Compensation List proceedings) against Elcom Collieries and the respondent, claiming permanent loss compensation under the Workers Compensation Act 1987 in respect of his injuries, including the 27 April 2004 injury (Orange book 3, Red book 60). The appellant filed a notice of discontinuance of those proceedings on 31 May 2007. An order for discontinuance was made on 15 June (Red Book 60). Meanwhile, on 24 April 2007, the appellant filed a further statement of claim, this time only against the respondent, in the District Court Common Law Division seeking common law damages in respect of the work injury on 27 April 2004 (the Common Law proceedings). The respondent filed a notice of motion seeking to have the Common Law proceedings struck out on the basis that the appellant, by commencing the Compensation List proceedings, had elected to claim permanent loss compensation pursuant to s 151A(3)(b). The respondent contended that the appellant was bound by that election and was thus disentitled to claim common law damages. The appellant contended that s 151A(3)(b) by its terms only applied to proceedings that had been commenced in the Compensation Court and accordingly, the election provisions did not apply, as he had commenced his permanent loss compensation claim not in the Compensation Court, which had been abolished, but in the District Court, albeit in the Compensation List. The primary judge held that s 151A(3)(b) applied to proceedings commenced in the District Court, so that the commencement of the Compensation List proceedings amounted to an election by the appellant to pursue permanent loss compensation. Her Honour’s reasoning was as follows: “1The clear intention of s 151A(3)(b) is that the election to pursue permanent loss compensation becomes binding upon the commencement of proceedings.2It is the clear intention of the District Court Act in respect of its residual jurisdiction that workers’ compensation rights of coal miners be heard and determined in the same manner as if the Compensation Court continued to operate.3The term residual jurisdiction is employed because it is jurisdiction that remained in the Compensation Court.4The District Court has effectively become the Compensation Court for the purposes of exercising this residual jurisdiction.5In my view it does not matter that the name of the Court has changed. The District Court continues to deal with the jurisdiction of the Compensation Court.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that, in accordance with the principles enunciated in Jones v Wrotham Park, the approach taken by the District Court in this matter was not open. It is, therefore, unnecessary to decide whether if, in circumstances where a court could be certain that Parliament would have amended s 151A(3)(b) to replace “Compensation Court” with “District Court”, it would be appropriate for the court to then construe the term “Compensation Court” to mean “District Court”. That in itself would be a large question.Conclusion The orders made in the District Court were that the plaintiff’s proceedings be struck out and that the plaintiff pay the defendant’s costs of the proceedings and the motion. These orders should be set aside. The following orders should be made:(1)Grant leave to appeal and treat the notice of appeal dated 12 August 2009 as properly instituting the appeal and otherwise waive compliance with the rules.(2)Allow the appeal and set aside the orders made in the District Court.(3)In lieu thereof, order that the defendant’s motion be dismissed with costs.(4) Order that the respondent pay the appellant’s costs in this Court.**********

Ratio Decidendi

Legal Principle Established

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