Toolan v Metropolitan (Perth) Passenger Transport Trust - [2001] WASCA 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: TOOLAN -v- METROPOLITAN (PERTH) PASSENGER TRANSPORT TRUST [2001] WASCA 131

CORAM: MALCOLM CJ
PIDGEON J
OWEN J
PARKER J
WHEELER J

HEARD: 18 DECEMBER 2000

DELIVERED : 24 APRIL 2001

FILE NO/S: FUL 76 of 1999

BETWEEN: PAUL TOOLAN
Appellant (Plaintiff)
AND
METROPOLITAN (PERTH) PASSENGER TRANSPORT TRUST
Respondent (Defendant)

Catchwords:

Statutes - Interpretation - Workers' compensation - limitation on awards of common law damages - Amendment to Act - Amendment not affecting actions for damages where leave to commence action given before Assent to amending Act - Leave to commence wrongly refused - Appeal from refusal pending at time of Assent - Whether leave to commence could be ordered on appeal after Assent

Legislation:

District Court of Western Australia Act 1969 (WA), s 79(2)

Interpretation Act 1984 (WA), s 37
Supreme Court Act 1935 (WA), s 59(4)
Workers' Compensation and Rehabilitation Act 1981, s 93A - s 93G

Workers' Compensation and Rehabilitation Amendment Act 1999, s 32(5) - (8)

Result:

Appeal allowed
Leave to commence action granted

Representation:

Counsel:

Appellant (Plaintiff) : Mr B L Nugawela
Respondent (Defendant) : Mr G R Hancy

Solicitors:

Appellant (Plaintiff) : D'Angelo & Partners
Respondent (Defendant) : Blake Dawson Waldron

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

Abbott v The Minister for Lands [1895] AC 425
Archer v Howell (1992) 7 WAR 33
Bird v The Commonwealth (1988) 165 CLR 1
Borthwick v Elderslie Steamship Co (No 2) [1905] 2 KB 51
Esber v The Commonwealth (1992) 174 CLR 430
Ex parte Cable Sands (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 980734; 21 December 1998
Fisher v Hepburn Ltd (1960) 105 CLR 188
Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379
Mathieson v Burton (1971) 124 CLR 1
Maxwell v Murphy (1957) 96 CLR 261
Musgrove v Minister for Transport [2000] WASCA 232
Nicol v Allyacht Spars Pty Ltd (No 2) (1988) 165 CLR 306
NSW Aboriginal Land Council v The Minister (1988) 14 NSWLR 685
Re Monger; Ex parte Ivey [1999] WASC 250
Samson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058B; 21 February 1997
Turner v London and South West Railway Co [1874] LR 17 Eq 561
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Western Australia v The Commonwealth (1975) 134 CLR 201

Case(s) also cited:

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Chestone Holdings Pty Ltd v Garbelini, unreported; FCt SCt of WA; Library No 980584; 19 October 1998
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Dimasi v ABB EPT Construction Pty Ltd (1995) 14 WAR 497
Garcia v National Australia Bank (1998) 194 CLR 395
Mills v Meeking (1990) 169 CLR 214
Nguyen v Nguyen (1989) 169 CLR 245
Re Tyler; Ex Parte Foley (1994) 181 CLR 18
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Wade v Allsopp [1976] 50 ALJR 643

MALCOLM CJ: In my opinion, this appeal should be allowed, the order of the District Court made on 20 May 1999 refusing leave to commence proceedings should be set aside and substituted by an order that the appellant have leave to institute proceedings to recover damages at common law in respect of personal injuries sustained in the course of his employment with the respondent, whether on 16 June 1995, or subsequently, or both. The order of the District Court that the appellant pay the costs of the application for leave to that Court should be set aside and substituted by an order that the respondent pay the costs of that application.
I have reached that conclusion in relation to the merits of the application for the reasons to be published by Parker J with which I am in entire agreement. These reasons are directed to the contention raised by the respondent that the Court should decline to follow the decision of the Full Court in Musgrove v Minister for Transport [2000] WASCA 232.
In Musgrove Mr Musgrove made an application to the District Court under s 93D of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"), as it then stood, which was refused on 9 July 1999. Mr Musgrove appealed to the Full Court against that decision. While the appeal was pending, s 93D, s 93E and s 93F of the Act were repealed and substituted by new provisions including s 93G. The appeal was heard on 20 March 2000. On 28 August 2000 the Full Court allowed the appeal, set aside the order of the District Court and, in lieu thereof, ordered that the appellant have leave to commence proceedings for damages "pursuant to s 93D of the Workers' Compensation and Rehabilitation Act". It is apparent from the reasons for judgment in Musgrove that this was a reference to the Act as it stood prior to the 1999 amendment.
In Musgrove it was contended by the respondent that the legislation had to be given effect in accordance with its terms and that the right to commence proceedings had been lost by virtue of the provisions of s 32(7) of the Workers' Compensation and Rehabilitation Amendment Act 1999 ("the Amendment Act") that:
"The amended provisions do not effect the awarding of damages in proceedings -
(a)commenced before the assent day; or
(b)for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continued to apply in relation to those proceedings."
The new s 93E(3) provides that damages can only be awarded if it is agreed or determined that the degree of disability is not less than 30 per cent or the worker has a "significant disability" and elects, in the manner prescribed, to seek damages and "the election is recorded in accordance with the regulations". Section 93E(4) provides that a "significant disability" is a degree of disability of not less than 16 per cent: Re Monger; Ex parte Ivey [1999] WASC 250.
The respondent in Musgrove relied upon Borthwick v Elderslie Steamship Co (No 2) [1905] 2 KB 51 in which Collins MR said at 519:
"… though … the Appeal Court has all the powers of the High Court, including the power to give any judgment and make any order which ought to have been made by the court at first instance, still the judgment of the court of appeal is a judgment of the date on which it was given, and it would require the invocation of the powers given by Order XLI r 3 … if that judgment is to be antedated. The judgment is not ipso facto antedated by reason that it is substituted for the judgment in the court below."
In Nicol v Allyacht Spars Pty Ltd (No 2) (1988) 165 CLR 306, in a joint judgment, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ followed Borthwick, saying at 331:
"But to empower an appellate court, in the exercise of its appellate jurisdiction to 'give such judgment as ought to have been given in the first instance' does not as Romer LJ pointed out in Borthwick means that the judgment of the appellate court 'must be regarded for all purposes as if it had been the judgment given by the Judge in the court below'."
It was on this basis that it was contended in Musgrove that it was too late for the Full Court on appeal to give the leave envisaged by s 32(7)(b) of the Amendment Act. Wallwork J at 14 - 15 answered that contention by reference to s 37 of the Interpretation Act 1984 which relevantly provides that:
"(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears …
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to repeal;
…
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
(2)The inclusion in the repealing provisions of an Act of any express saving with respect to the repeals is effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."
Wallwork J concluded that:
"In my view it is clear that the appellant had exercised his right to seek leave to proceed pursuant to s 93D(4). He is now continuing the legal proceedings he commenced in respect to the right as contemplated in s 37(1) of the Interpretation Act."
With the greatest respect, that conclusion does not resolve the matter as it begs the question whether leave to commence proceedings had been granted by the District Court before the assent day for the purposes of s 32(7) of the Amendment Act.
Ipp J, after referring to the relevant provisions of the Amendment Act and setting out s 32(7), said at 6 - 7:
"The implication is that the 'amended provisions' do affect the awarding of damages in proceedings commenced after the assent day and for the commencement of which the District Court did not give leave under the former provisions before the assent day.
Counsel for the respondent submitted that any order made by this Court varying the order of the District Court would remain an order of this Court and should not be construed as being an order by the District Court giving leave under the former provisions before the assent day. This argument was based on the proposition that any variation of the order of the District Court by this Court would be an order made on the date on which it was given, and could not be regarded as being backdated in any respect. Therefore, it would not result in an order by the District Court giving leave 'under the former provisions before the assent day'. I accept the validity of this submission: see Borthwick v Elderslie Steamship Co (No 2) [1905] 2 KB 516 at 519 and Nicol v Allyacht Spars Pty Ltd (1988) 165 CLR 306.
Counsel for the respondent proceeded to argue that an order of this Court, varying the decision of the learned District Court Judge and purporting to grant leave under the repealed s 93D, would have no effect as such an order was made after the assent day. It was submitted that s 32(7) precludes the awarding of damages in proceedings commenced after the assent day and, as a matter of fact, the District Court did not give leave for the commencement of proceedings under the former provisions before the assent day.
Counsel rightly accepted that on the construction so advanced, an error on the part of the District Court Judge - in regard to an application for leave timeously made - might result in a claimant losing his or her right to claim damages. On this basis, the amending statute would deprive an appellant of the right to appeal against an erroneous decision of the District Court: an unfair consequence indeed. In my view, if the Act is to be so construed, the intention of Parliament to that effect would have to be very clear."
Ipp J went on to point out at 7 - 8 that neither s 32(7) or any other provision of the Amendment Act expressly excluded appeals to this Court from any decision of the District Court giving or refusing leave under s 32(7)(b). In this context, of course, s 79(1) of the District Court of Western Australia Act 1969 provides that:
"A party to an action or matter who is dissatisfied with -
(a)a final judgment, may appeal from that judgment to the Full Court constituted under the Supreme Court Act 1935;
(b)a judgment that is not a final judgment … may by leave of the Supreme Court or a judge thereof, appeal to such Full Court,
…"
As to this, Ipp J said at 8:
"By providing in the Workers Compensation and Rehabilitation Act for the grant of leave by the District Court (by s 93D prior to its amendment), Parliament caused the appeal provisions of s 79 of the District Court of Western Australia Act 1969 to be of application. As the amending Act did not expressly exclude those appeal provisions, it is implicit, in my opinion, that those appeal provisions continue to apply. It would be wrong, therefore, to construe s 32(7) in such a way as to render them nugatory. On that basis, it seems to me, s 32(7) should be construed to mean that the amended provisions do not affect the awarding of damages in proceedings for the commencement of which the District Court gave or should have given leave under the former provisions before the assent day.
In my opinion, in the present case, for the reasons expressed by Wallwork J, the District Court should have given leave under the former provisions before the assent day. Accordingly, I agree with the orders proposed by Wallwork J."
Kennedy J dissented from the majority in Musgrove. Kennedy J at 4 considered that the issue to be decided in Musgrove was whether the Amendment Act, subject to the exception in s 32(7) manifested an intention that it should apply in respect of an "injury" caused before the Amendment Act came into operation: Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379 at 402. After referring to the well‑known passages in Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ and Fisher v Hepburn Ltd (1960) 105 CLR 188 at 194 per Fullagar J concerning the presumption that an amending Act should be prima facie construed as having a prospective operation only, Kennedy J said at 5 - 6:
"Those passages were referred to with approval in the decision of the High Court in Geraldton Building Co Pty Ltd v May (supra) which, coincidentally, itself concerned an amendment to the Workers' Compensation Act 1912 (WA). In his judgment, at 387, Barwick CJ indicated that 'in construing the Act, regard should be had to the consequences of any particular construction and the legislature credited with the intention of doing justice to both the affected parties'. The amending Act in issue in the Geraldton Building Co Pty Ltd case contained no transitional provision. The Amendment Act with which we are concerned, however, expressly provides that the amending provision does not affect the awarding of damages in proceedings for the commencement of which the District Court has given leave under the former provisions prior to the assent day. Although I accept that a judgment of this Court overturning a decision of the District Court refusing leave to bring an action will result in an order of the District Court granting leave within the terms of s 32(7) of the Amendment Act, in my view, it cannot be said that the decision of the Full Court operates retrospectively so that leave is deemed to have been granted by the District Court on the date when it in fact refused leave. It may well be claimed that this does not do justice to both the affected parties, but it is, in my view, the result of the legislation. The relevant leave not having been granted prior to the date of assent, it follows, in my opinion, that the 'amended provisions' do 'affect the award of damages in [the] proceedings'.
It does not appear to me that s 37 of the Interpretation Act 1984 can assist the appellant for the reason that 'the contrary intention' appears in s 32(7) of the Amendment Act.
In the circumstances, I would dismiss the appeal."
The significant feature of the present case is that some months prior to the commencement of the Amendment Act an application had been made to the District Court under the then current provisions of s 93D for leave to commence proceedings. Leave was refused and an appeal to this Court duly commenced within time. The appeal was pending when the legislation came into effect on 5 October 1999, but was not heard until 20 March 2000. Judgment was delivered on 28 August 2000.
I agree with Wheeler J that the subject matter with which s 32(7) of the Amendment Act is concerned is the award of damages in proceedings commenced on or after the assent day, other than proceedings for the commencement of which the District Court gave leave under the former provisions before the assent day. Proceedings for damages commenced before the assent day and proceedings the subject of a grant of leave to commence made before that day are not affected by the amendments. In the context of a pending appeal to the Full Court which was commenced before the assent day, it is necessary to consider the application of s 37 of the Interpretation Act 1984. Section 37(1) provides that:
"General savings on repeal
Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(a)revive anything not in force or existing at the time at which the repeal takes effect;
(b)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d)affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
(e)subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."
In my opinion, s 37(1)(c) protects the right of an appeal from a refusal of leave under the repeal provisions where the appeal has been commenced and was pending as at 5 October 1999. The right of appeal to the Full Court by leave of the Supreme Court or a Judge existed at that date by virtue of the provisions of 79(1)(b) of the District Court of

Western Australia Act 1969. Leave to appeal had been duly obtained and the appeal commenced by notice of appeal dated 11 June 1999. Section 37(1)(f) of the Interpretation Act provides that the repeal of the former provision does not affect any "legal proceeding or remedy" in respect of any such right. Finally, s 37(1) concludes by providing that any such legal proceeding may be continued "as if the repealing law had not been passed or made". This clearly has the effect that an appeal pending under the repealed law is required to be heard and determined under the repealed law in the same way as if it had not in fact been repealed.

Furthermore, s 37(2) of the Interpretation Act provides that:
"The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."
In my view, there is no inconsistency between the provisions of s 32(7) of the Amendment Act and s 37 of the Interpretation Act. The result is, where no relevant proceedings are pending as at 5 October 1999, then, irrespective of the date of the accident or the date upon which the injury or disability occurred, the Amendment Act applies, unless one or other of the saving provisions in s 37(2) applies. In my view, in a case where one or other of the saving provisions applies, the intention of the legislation on its proper construction is that pending proceedings are subject to the statutory regime as it was prior to the amendment.
It is on this basis that I have concluded that the decision in Musgrove is correct, although for somewhat different reasons from those expressed by Ipp J and Wallwork J respectively.
It follows that all of the proceedings in this matter are to be determined in accordance with the law as it stood prior to the relevant amendment. That being so, the question whether the Full Court needs to backdate its order to take effect from a date prior to the introduction of the amendment, such as the date on which the order appealed from was made, simply does not arise. The Court should simply make such order as the court at first instance ought to have made.

PIDGEON J: I agree with the reasons to be published by Parker J and with the orders he proposes.

OWEN J: I have read, in draft form, the reasons for decision that Parker J intends to publish. I agree with those reasons and with the conclusion that the appeal should be allowed.
The Court was invited to overrule or depart from the decision in Musgrove v Minister for Transport [2000] WASCA 232. I would not do so. I am entirely comfortable with the reasoning of Ipp J in Musgrove as to the proper interpretation of s 32(7) of the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) and its application to a situation such as this. To the extent that it is appropriate or necessary to have regard to s 37(1) and (2) of the Interpretation Act 1984 (WA), I believe that the proper approach is that explained by Parker J. If I were to explain my own views on that issue in detail I would only be repeating what his Honour has said.
PARKER J: This is an appeal from a judge of the District Court who, on 20 May 1999, refused the appellant leave to commence proceedings in that Court to recover damages at common law for personal injury. The appellant had been injured in the course of his employment and leave to commence proceedings to recover damages at common law was required by the then s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). The appellant seeks the setting aside of the decision of the District Court and the substitution of an order granting the appellant leave to commence proceedings in the District Court claiming damages at common law for personal injury.
At the date of the decision of the District Court to refuse the appellant leave, s 93D of the Act relevantly provided:
"(4)Proceedings in which damages are sought are not to be commenced without the leave of the District Court.
(5)Leave is to be given if -
(a)…
(b)…
(c)the court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount."

The prescribed amount was $106,382 as at 20 May 1999. When the appeal was argued the prescribed amount had risen to $109,650.

The grounds of appeal are:
"1In reaching his decision the learned Judge erred in deciding that the appellant (plaintiff) had not established that he was likely to recover at least the prescribed amount of damages ($106,382.00) for future pecuniary loss.
2The learned Judge erred in that:
2.1his Honour failed to take the proper approach in considering the evidence before him, namely, to act on the view reasonably open on the evidence which most favoured the applicant. Had the learned Judge adopted the proper approach he should have decided on the evidence (the respondent (defendant) not submitting any evidence) that the appellant (plaintiff) was so disabled by the chronic low back pain from which he suffered and would continue to suffer as a result of personal injury on 16 June 1995 that:
2.1.1at the age of 51 years the appellant (plaintiff) suffered permanent disability from the loss of efficient use of his low back region which rendered him permanently unfit to return to work as a bus driver;
2.1.2the appellant (plaintiff) was thereby unable to continue to earn his pre-disability income as a bus driver of at least $500.38 net per week plus employers' compulsory superannuation contribution,;
2.1.3vocational rehabilitation was not likely to be effective;
2.1.4the appellant's (plaintiff's) vocational history, age and disablement meant his residual earning capacity was probably very low, if any;
2.1.5the appellant (plaintiff) would probably incur future medical and pharmaceutical expenses; and
2.1.6in consequence of the foregoing the appellant (plaintiff) was likely to recover in common law proceedings damages for future pecuniary loss of at least the prescribed amount ($106,382.00)."
As the appeal was argued, two distinct issues arise. First, whether on the factual merits the District Court Judge should have been persuaded to grant leave. This involves the application of the then s 93D(5)(c) of the Act. Secondly, the effect of amendments to the Act made by the Workers' Compensation and Rehabilitation Amendment Act 1999 ("the 1999 Amendment") which came into force on 5 October 1999. The second issue in particular involves the effect of the 1999 Amendment on this Court's capacity, were it so persuaded, now to substitute an order granting leave for the order made by the District Court on 20 May 1999 and the consequences of any such substituted order. With respect to the second issue the respondent seeks the reconsideration of the decision of this Court in Musgrove v Minister for Transport [2000] WASCA 232 which was delivered on 28 August 2000. For this reason the Court has been constituted by five judges to hear this appeal.

The Factual Merits

In Samson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058B; 21 February 1997 the approach to be taken to the question whether leave should be granted in this context was discussed. In the reasons of Parker J, Kennedy and Wheeler JJ concurring, at 4-6 it was said:
" … 'Likely' in the context of s 93D(5)(c) conveys the notion of a substantial - ie a real and not a remote - chance, regardless of whether it is less or more than 50 per cent: Mayne v Mayne Nickless Ltd T/as Ords Express, unreported; FCt SCt of WA; Library No 960223; 26 April 1996 per Kennedy J, Murray and Parker JJ concurring.
In attempting to assess the future pecuniary loss of a person seeking leave to commence proceedings, it is necessary for the Court to act on affidavit evidence and it is likely that there will be some divergence or conflict in that evidence. While in some situations the Court will be able to come to a clear view of the relevant facts despite divergences in the affidavit evidence, in most cases it will be inappropriate to attempt to resolve material conflicts. Given the nature of the application, usually it will be appropriate, where there is material conflict or divergence, to act on the view reasonably open on the evidence which most favours the applicant. …
Section 93D(4) necessarily requires a court to make an assessment albeit in a preliminary way and on affidavit, of the measure of damages for pecuniary loss which is likely to be awarded to the applicant in the event of a trial. In some applications it will be appropriate, therefore, for the court to allow to the applicant the benefit of any shifting evidentiary onus which it is reasonable to anticipate will arise in the course of a full trial. One such evidentiary onus which is relevant to the present case is that adverted to by Malcolm CJ and Wallace J, Kennedy J concurring, in Thomas v O'Shea (1989) A Tort Rep 80-251 at 68,701 where their Honours said:
'The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings.'
As appears from these words, at trial it would be necessary for the appellant to show first that he has lost his pre-accident earning capacity and, secondly, that he has been unable to find alternative employment or that his condition has prevented him from finding alternative employment."
It is important, however, not to read these observations as suggesting that in every case the best possible interpretation for the applicant should be placed on the evidence. As was observed in Waddington v Silver Chain Nursing Association (1998) 20 WAR 269 by the Court (Malcolm CJ, Kennedy and Owen JJ) at 285:
"The approach adopted by Parker J in Samson needs to be considered in those instances where, in the words of Parker J, the case is not one in which the 'Court will be able to come to a clear view of the relevant facts despite divergences in the affidavit evidence'. If the Court is able to arrive at a clear view of the relevant facts despite conflicting evidence, it is suggested that the Court would not need to resort to consider the application of the approach by Parker J to the case at hand. If, however, there is a material conflict in the evidence before the Court then the Court should approach the evidence by acting 'on the view reasonably open on the evidence which most favours the applicant'. As emphasised by Kennedy J in Land Lease Employers Systems Ltd, (unreported; FCt SCt of WA; Library No 980088; 27 February 1998 per Kennedy J at 5) acting on a view 'reasonably open on the evidence which most favours the applicant' is an approach quite distinct from placing the best interpretation one can upon the evidence for the applicant.'
In the present case the applicant slipped and suffered a left shoulder and lower back injury in the course of his work on 16 June 1995. He had been employed as a bus driver by the respondent since 1978. The medical reports indicate he has substantially recovered from the shoulder injury to the point that "for all practical purposes it is substantially normal". He returned to his pre-accident work as a bus driver after some two months and worked until February 1998 on full-time duties although with some occasional time off because of back pain.
The applicant deposed on affidavit, however, that "working continued to aggravate my injuries". In about February 1998, not long after a change to his duties following the privitisation of the bus service, it appears the applicant experienced what he described as constant pounding over a couple of weeks while working his new normal hours and duties, whereby his cranium and sacrum were compressed. The applicant deposed that he felt his back deteriorated somewhat inexplicably such that he was unable to walk more than 100 metres without quite severe pain. He stopped work on 3 March 1998 and has not worked since then.
It is not the case that any specific incident led to his ceasing to work on 3 March 1998. Rather, it is the applicant's case that it was the cumulative effect of performing his new duties over a period of weeks preceding 3 March 1998 which required him to cease work and this is particularly attributed to the need under his new duties for prolonged sitting and exertion in the driver's seat of buses without a break.
It is the applicant's case that since 3 March 1998 he has not been able to return to his former work as a bus driver. Further, while he is certified as only partially unfit for work he has no academic qualifications, having left school at age 15, and his work experience is that of farm and general labouring and as a driver. Hence it is his case that he has been, and even with vocational rehabilitation he will continue to be, unable to secure employment in the open market given his injuries and his age which was 51 on 3 March 1998.
It is on this basis that the applicant contends that his reasonable expectation of an award for damages at common law includes an award for total loss of future net earnings to age 65 (his net wage as at 3 March 1998 had been $500.38 per week) which, even allowing 15 per cent for contingencies, would amount to some $205,000, a figure nearly double the prescribed limit. He also points to a loss of superannuation contributions which, when calculated on the same basis, would warrant an award of a further $7,400. In addition, he claims he has an ongoing need for medical treatment, medications, etc for which an award would be appropriate.
In support of his application to the District Court the applicant relied on a number of medical reports. Some dated from 1995 and 1996 but the most relevant were those in 1998 of Dr Suthers, Dr Graziotti and Mr Lee.
Dr Suthers, an occupational physician, saw the applicant again in April 1998. He described the shoulder as "now virtually resolved completely" but reported residual symptoms of chronic low back pain for which "there was no real pathology sufficient to explain his level of impairment or disability", and in his opinion there was a significant element of non-organic back pain in the appellant's presentation. With respect to the appellant's work capacity Dr Suthers reported with respect to the low back pain "Nevertheless, the significant impairment has resulted in quite a disability. I do not have a good medical reason why he is unable to return to his pre-accident duties". Dr Suthers added "I doubt if rehabilitation is going to be particular effective". Dr Suthers was of the view that the applicant did not require any further specific treatment and gave as his prognosis, "I expect that Mr Toolan's prognosis is probably quite good in the long term, but within the foreseeable future I expect he is going to remain in chronic pain and in some difficulty".
Dr Graziotti practices in the field of pain management and anaesthetics. He saw the applicant in April 1998. Dr Graziotti reported a bi-lateral lumbo-sacral pain which the appellant had described as "a tightness or pressure feeling" and which was reported to be aggravated by walking, sitting for prolonged periods (more than one to two hours) or a lot of bending. It was Dr Graziotti's view that "… Whilst this man certainly has some pain in the back his predominant problems relate to the difficulties at work since it has been privatised". The appellant had described to Dr Graziotti that he ceased work on 3 March 1998 because he was required to drive continuously and no breaks were allowed for. Dr Graziotti considered that an exercise programme was the main treatment now. He felt it unreasonable to expect the applicant to reach a level where he had no pain at all but that "It should be possible for him to get back to work, provided that allowance can be made for him to take breaks every hour or so for him to get out and stretch". On that basis Dr Graziotti considered the appellant would be able to get back to his previous employment. Dr Graziotti added that if that was not possible the appellant might be better off changing jobs to something "perhaps like taxi driving" where "he has more control over whether or not he gets out of the car … he should be able to cope with a job like that".
Mr Lee, a neurological surgeon, reported in June and November 1998. He had seen the appellant again in June 1998. The appellant reported an inability to sit for the length of time required by his current duties as a bus driver "Without experiencing excessive and unacceptable low back pain with some radiation into the left hip region". Examination had revealed no neurological deficit and "His problem is that he is unable to sustain sitting for anything other than short periods of time". Mr Lee added that "From a practical point of view, I would have thought he should be medically retired from his job being unable to fulfil the demands that are required of a bus operator". Mr Lee did not consider that any specific treatment was likely to be of assistance.
No other evidence was offered by either party. The respondent contended itself with suggesting a calculation of future pecuniary loss on the basis that the appellant had at least the capacity to earn the minimum wage as a taxi driver, so that the appellant's loss of actual net earnings would be some $209 per week which, when calculated over the 13 years then remaining to age 65, at a 6 per cent discount and after allowing a 15 per cent for contingencies, produced a potential award it was contended of some $84,600. The respondent calculated the loss in respect of superannuation at a figure of $6,268.21 after applying a discount for the administration of the superannuation fund and for possible tax and investment risks. The respondent also contended that no provision was justified on the evidence for future medical treatment or medication. In the result, therefore, the respondent submitted that damages for future pecuniary loss would be likely to be only some $90,870, a figure well below the prescribed figure.
It will be apparent that this evidence involves material conflicts or divergences. Despite some apparent deficiencies in the appellant's evidence it is not possible to reach a clear view that the appellant could have returned to his previous work as a bus driver, or that he could and should have found suitable alternative work. The view is reasonably open, in my view, even though it might not be ultimately established at trial, that the applicant is no longer able to perform his former duties as a bus driver and that his condition has prevented him finding alternative work. It would not be reasonable, however, to conclude on this evidence that he had no ongoing earning capacity as a driver. While the evidence provides some basis for the view that the applicant could be employed as a driver, especially as a taxi driver, it fails to explore whether any suitable work of that nature is available or the prospects of the appellant, with his limited work experience, obtaining such employment and doing so on a regular and full-time basis, especially having regard to his ongoing medical condition and age. On the evidence before the District Court it is reasonable to anticipate that at trial the applicant would have the benefit of the shifting evidentiary onus in this regard as contemplated in Thomas v O'Shea (supra). On the evidence, there is no more than conjecture, founded in the suggestions of Dr Graziotti, that the applicant ought to be able to work as a taxi driver, that the applicant could find such work, and thereby could be expected to earn at least the minimum wage on a regular basis. That is not enough to demonstrate that, in reality, such an alternative employment opportunity would be open to this appellant and that the likely earnings would be at least the minimum wage.
In these circumstances, without the need for more detailed calculations of possible awards, the applicant had demonstrated, in my view, that an award for future pecuniary loss greater than the prescribed amount of $106,832, or $109,650 as the figure now is, was likely. In my respectful view the error below was in assuming that work as a taxi driver was available to the appellant and that it would return at least the minimum wage.
For these reasons, in my view, the Judge of the District Court ought to have granted to the appellant leave to commence proceedings to recover damages at common law on 20 May 1999.

Musgrove v Minister for Transport

Since 1993, s 93C of the Act has provided:
"93CIf this Division applies a court is not to award damages to a person contrary to this Division."
This section, like all the sections relevant to this appeal, is in Division 2 of Part IV of the Act, which Division is entitled "Constraints on awards of common law damages."
By the 1999 Amendment, which came into force on 5 October 1999, a new regime for limiting the opportunity of a worker injured at work to sue for damages at common law came into force. Its general effect is to provide constraints less favourable to the worker than previously. Under the new regime established by the amended provisions the District Court may no longer grant leave for the commencement of proceedings at common law. Instead of that procedure there is an entirely new procedure with which a worker must comply before the worker may obtain an award for damages at common law.
It is assumed by the parties for the purposes of this appeal that the appellant would not be able to sue for and recover damages at common law if the amended provisions enacted by the 1999 Amendment applied to his case.
It is principally s 93D which established the regime for constraints on the capacity of a worker to bring an action for damages at common law, both under the former provisions before the 1999 Amendment and under the amended provisions. Section 93D was repealed and re-enacted, however, with substantial changes by s 32(5) of the 1999 Amendment.

Transitional provisions were enacted by the 1999 Amendment. These were provided inter alia by s 32(6) and (7) of the 1999 Amendment. These provide:
"(6)In subsections (7) and (8) -
'amended provisions' means Part IV Division 2 of the principal Act as amended by this section;
'assent day' means the day on which this Act receives the Royal Assent;
'former provisions' means part IV Division 2 of the principal Act before it was amended by this section.
(7)The amended provisions do not affect the awarding of damages in proceedings -
(a)commenced before the assent day; or
(b)for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
Material to the present appeal is s 32(7)(b) of the 1999 Amendment. Leave to commence proceedings to recover damages at common law had been sought by the appellant and refused by the District Court before the assent day, 5 October 1999. It is the primary submission of the appellant that notwithstanding the command of s 93C of the Act and the amended provisions which have been in force since 5 October 1999, if the refusal of leave by the District Court is reversed by this Court on this appeal and an order is substituted granting leave, that grant of leave will take effect from the date of the original order of the District Court, ie 20 May 1999. It would follow, it is submitted, that for the purposes of s 32(7)(b) of the 1999 Amendment, leave would have been granted by the District Court under the former provisions before the assent day with the further consequence that the "former provisions", as defined by s 32(6) of the 1999 Amendment, "continue to apply in relation to those proceedings" as provided by s 32(7).
Musgrove v Minister for Transport (supra) concerned the same provisions. An application had been made under the former provisions to the District Court for leave to commence proceedings for damages at common law. On 9 July 1999 leave was refused. On appeal to this Court against the refusal of leave the decision of the District Court was reversed by a majority, Ipp and Wallwork JJ, Kennedy J dissenting, and leave to proceed with a common law action for damages was granted. This decision was given on 28 August 2000 which was well after the coming into force of the 1999 Amendment on the assent day, ie 5 October 1999.
In his reasons for decision Ipp J at [13] - [16] said:
"[13]… It was submitted that s 32(7) precludes the awarding of damages in proceedings commenced after the assent day and, as a matter of fact, the District Court did not give leave for the commencement of proceedings under the form of provisions before the assent day.
[14]Counsel rightly accepted that on the construction so advanced, an error on the part of the District Court Judge - in relation to an application for leave timeously made - might result in a claimant losing his or her right to claim damages. On this basis, the amending statute would deprive an appellant of the right to appeal against an erroneous decision of the District Court: an unfair consequence indeed. In my view, if the Act is to be so construed, the intention of Parliament to that effect would have to be very clear.
[15]It is noteworthy that s 32(7) (or any part of the Amending Act) does not expressly exclude appeals to this Court from any decision of the District Court giving or refusing leave under s 32(7)(b). Section 79(1) of the District Court of Western Australia Act 1969 provides:
"A party to an action or matter who is dissatisfied with -
(a)a final judgment, may appeal from that judgment to the Full Court constituted under the Supreme Court Act 1935;
(b)a judgment that is not a final judgment … may by leave of the Supreme Court or a judge thereof, appeal to such a Full Court,
…
[16]By providing in the Workers' Compensation and Rehabilitation Act for the grant of leave by the District Court (by s 93D prior to its amendment), Parliament caused the appeal provisions of s 79 of the District Court of Western Australia Act 1969 to be of application. As the amending Act did not expressly exclude those appeal provisions, it is implicit, in my opinion, that those appeal provisions continue to apply. It would be wrong, therefore, to construe s 32(7) in such a way as to render them nugatory. On that basis, it seems to me, s 32(7) should be construed to mean that the amended provisions do not affect the awarding of damages in proceedings for the commencement of which the District Court gave or should have given leave under the former provisions before the assent day."
Wallwork J relied on s 37(1)(c) and (f) of the Interpretation Act 1984. He concluded at [53]:
"In my view, it is clear that the appellant had exercised his right to seek leave to proceed pursuant to s 93D(4). He is now continuing the legal proceeding he commenced in respect to the right as contemplated in s 37(1) of the Interpretation Act."
Kennedy J in his dissenting reasons, particularly at [6] and [7] did not accept that a decision of the Full Court would operate "retrospectively so that leave is deemed to have been granted by the District Court on the date when it in fact refused leave". It followed in his Honour's view that the amended provisions did regulate the awarding of damages. His Honour added:
"[7]It does not appear to me that s 37 of the Interpretation Act 1984 can assist the appellant for the reason that 'the contrary intention' appears in s 32(7) of the Amendment Act."
Section 37(1)(c) and (f) and (2) of the Interpretation Act relevantly provide as follows:
"37.General Savings on repeal
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(a)…
(b)…
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d)…
(e)…
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity …
And any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, … as if the repealing written law had not been passed or made.
(2)The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."
It is to be noted that "enactment" in s 37(1) is defined by s 5 of the Interpretation Act to mean a written law or any portion of a written law, so that in this case there has been a repeal of an enactment for the purposes of s 37(1) by the 1999 Amendment.
For present purposes the provisions of s 37(1) (c) and (f) are in substantially the same terms as s 8 (c) and (d) of the Acts Interpretation Act 1901 (Cth) which was considered by the High Court in Esber v The Commonwealth (1992) 174 CLR 430 . In that case Esber, who had been injured while a member of the Defence Force, requested on 25 February 1987 the redemption of the liability of the Commonwealth to make further payments to him of compensation, cf s 49 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). A delegate of the Commissioner under that Act determined on 29 October 1987 that the Commonwealth's liability should not be redeemed. On 15 September 1988 Esber applied for a review of the delegates' determination in accordance with Part V of the 1971 Act. The application was made to the Administrative Appeals Tribunal (the "AAT"). Before any hearing by the AAT, the 1971 Act was repealed by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) which came into force on 1 December 1998. In 1999 the AAT set aside the decision of the delegate and determined that there should be a redemption. It did so by applying the repealed provisions of the 1971 Act. On appeal from the decision of the AAT to the Federal Court it was contended for the Commonwealth that the AAT erred in applying the repealed provisions of the 1971 Act. Under the 1998 Act, which was in force at the time of the hearing and determination by the AAT, Esber had no entitlement to redemption. By a majority of the Federal Court it was held that the AAT should have applied the provisions of 1988 Act, ie should have refused the request for redemption. This decision of the Federal Court was reversed by the High Court. The joint reasons of the majority offer two distinct bases for decision. One of them was the operation of s 8(c) and (d) of the ActsInterpretation Act. Mason CJ, Deane, Toohey and Gaudron JJ, having rejected a submission that at the date of the repeal of the 1971 provisions Esber had a right to be paid the redeemed amount of the compensation for which the 1971 Act provided as that right did not arise until discretionary factors were favourably determined by the Commissioner, went on to say at 440-441:
"… at the least, the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision. In Drake, Bowen CJ and Deane J said of the Tribunal:
'The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.'
But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v The Minister [The Winbar Claim]:
'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.'
Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment'. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right 'although that right might fairly be called inchoate or contingent'. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act."
In the present case the appellant had applied to the District Court in June 1998 for a grant of leave to commence proceedings for damages at common law which application for leave had been refused on 20 May 1999. By notice dated 11 June 1999 the applicant had appealed to this Court pursuant to s 79(1) of the District Court of Western Australia Act 1969. Were that appeal to be heard and determined on its merits and allowed, as I have indicated earlier in these reasons should occur, it is the effect of s 79(2) of the District Court Act and s 59(4) of the Supreme Court Act 1935, that on the appeal this Court would exercise the jurisdiction and powers of the District Court. Hence, an order of this Court, substituting an order that leave to commence proceedings to recover damages at common law be granted for the order of the District Court made on 20 May 1999 refusing leave, would, for relevant purposes, be a grant of leave by the District Court. Notwithstanding the submissions of the appellant, however, the preferable view would appear to be that the order granting leave to commence the proceedings at common law would not be made until the date of the decision of this Court, it would not be an order made on 20 May 1999; see Nicol v Allyacht Spars Pty Ltd (No 2) (1988) 165 CLR 306, Borthwick v Elderslie Steamship Co (No 2) [1905] 2 KB 516 at 519.
It is also the appellant's case, however, that at the time of the repeal of the former provisions on 5 October 1999 he had a right under the scheme of the former provisions to obtain an award of damages at common law in accordance with the former provisions, it being a step in the exercise of that right that he was required by the former provisions to obtain leave to commence proceedings for an award of damages. He sought but was wrongly refused this leave, as the discussion earlier in these reasons indicate, and as at 5 October 1999 he had appealed against that refusal and the appeal was awaiting hearing by this Court. Thus, at the time of the repeal of the former provisions on 5 October 1999 the appellant may be seen to have had two rights,
(a)a right to have his appeal against the refusal of leave considered and determined according to law, or to adapt the words of the majority in Esber at 440, a right to have a grant of leave if that had been wrongly refused by the District Court, and
(b)a right to an award of damages at common law to which he had an entitlement in accordance with the former provisions, although this right was conditional on two matters, a grant of leave by the District Court under the former provisions and on the relevant facts being established to justify the making of an award of damages.
As was recognised by the majority in Esber at 440 "the right was nonetheless a right because it was conditional' that being the phrase "borrowed" by the majority from the judgment of Hope JA in NSW Aboriginal Land Council v The Minister (1988) 14 NSWLR 685 at 694. As the majority said at 440:
"Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, although that right might fairly be called inchoate or contingent; see Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552."
It is not enough to attract the operation of s 37(1)(c) of the Interpretation Act, however, that there be a right at the time of the repeal. The right must also be one which at that time may properly be described as "created, acquired, accrued, established or exercisable".
With respect to the right to have his appeal considered and determined according to law and to have a grant of leave if it had been wrongly refused the analogy with the right in Esber appears to be clear. By analogy with the reasoning in that decision that right had been acquired or had accrued on the institution of the appeal on 11 June 1999. In the absence of a contrary legislative intention, s 37(1)(c) protected and preserved that right and by the express provisions of s 37(1)(f) that appeal, being a legal proceeding in respect of "that right", was not affected by the repeal on 5 October 1999, and by the concluding provisions of s 37(1)(f) it "may be continued … as if the" 1999 Amendment had not been passed.
With respect to the appellant's contingent entitlement to an award of damages at common law in accordance with the Act, the position is not as clear. The appellant had not issued his writ as at the date of repeal, 5 October 1999. He could not do so because of the refusal of leave which remained unreversed at that date. The question arises, therefore, whether by virtue of the failure to issue the writ the contingent right or entitlement of the appellant is properly to be categorised as perhaps merely "a power to take advantage of an enactment", as in Mathieson v Burton (1971) 124 CLR 1 at 23, which power had not then been sufficiently exercised so as to give rise to a (contingent) right "created, acquired, accrued, established or exercisable" prior to the repeal within the meaning of s 37(1)(c). The discussion by Gibbs J in Mathieson v Burton at 23 concludes with the statement in respect of a somewhat equivalent provision in s 8(b) of the Interpretation Act 1897 (NSW),
"That section in referring to a right acquired or accrued does not preserve a power to take advantage an enactment, assuming that it may properly be described as a right (Abbott v The Minister for Lands [1895] AC 425 at 431), and does not apply where there is merely a hope or expectation that a right will be created (Director of Public Works v Ho Po Sang [1961] AC 901); but it does protect anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent' (Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552."
In Abbott v The Minister for Lands [1895] AC 425, to which Gibbs J referred, the Privy Council considered the question whether a proviso to s 22 of the Crown Lands Act 1884 (NSW) preserved a right to make additional conditional purchases of land under an earlier Act which had been repealed by the 1884 Act. The terms of the proviso were:
"Provided always that notwithstanding such repeal -
(b)All rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enactments shall subject to any express provisions of this Act in relation thereto remain unaffected by such repeal."
In the judgment of their Lordships it was said at 431:
"It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to anyone who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching.
It may be, as Windeyer J observes, that the power to take advantage of an enactment may without impropriety be termed a 'right'. But the question is whether it is a 'right accrued' within the meaning of the enactment which has to be construed.
Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words 'obligations incurred or imposed'. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment."
While the terms of s 37(1)(c), viz "created, acquired, accrued, established or exercisable", appear to be more expansive than the word "accrued" in the proviso considered in Abbott v Minister for Lands, the reasoning of their Lordships leads to the question whether the present appellant has taken steps towards availing himself of his contingent right or entitlement to an award of damages in accordance with the former provisions sufficient to give rise to a right "created, acquired, accrued, established or exercisable" within the meaning of s 37(1)(c).
It is relevant in this regard to keep in mind that the statutory scheme of the former provisions of the Act relevantly limited the circumstances in which, and the extent to which, damages at common law could be awarded. And it precluded the awarding of damages by a court contrary to the former provisions. As an integral part of that scheme, and as an apparent means of preventing proceedings to recover common law damages by workers, unless relevantly the worker could demonstrate on the application for leave that it was likely that his future pecuniary loss would exceed the prescribed amount, there was introduced a statutory requirement for leave before proceedings to recover damages at common law could be commenced by a worker.

In the context of this particular statutory scheme it seems to me that a worker claiming to have an entitlement to an award of damages at common law in accordance with the former provisions, who in accordance with the former provisions sought leave of the District Court to commence proceedings, and pursued that application for leave to the point of decision by the Court only to have leave refused, and who had instituted an appeal against that refusal and was duly pursuing that appeal, and who thereby had a right to have that refusal of leave reversed and to have a grant of leave if it had been wrongly refused by the District Court, has taken clear and manifest steps, and at that stage cannot do more under the statutory scheme, "towards availing himself" of the right. Having presented his case for leave and obtained a decision of the District (albeit adverse) on that case, and by appealing from that decision having acquired a right to have a grant of leave if it had been wrongly refused, the appellant in this case may be seen to be in a materially different position than, for example, a worker who had merely applied for a grant of leave but had not had that application heard and determined by the District Court when the 1999 Amendment came into force on 5 October 1999. In my view, while the issue involves the drawing of fine distinctions, in these circumstances the appellant may be seen to have acted sufficiently to take advantage of his contingent right to an award of damages in accordance with the former provisions, for that to be a right "created, acquired, accrued, established or exercisable" within the meaning of s 37(1)(c) of the Interpretation Act.
If that view is correct, in the absence of a contrary legislative intention, the contingent right to an award of damages is not affected by the repeal of the former provisions (s 37(1)(c)), nor is any legal proceeding or remedy in respect of that right (s 37(1)(f)), and by virtue of the concluding provisions of s 37(1) any such legal proceeding and remedy may be instituted and enforced "as if the repealing written law (ie the 1999 Amendment) had not been passed or made". That being so, it would not be relevant that the decision of this Court on appeal to grant leave was made after 5 October 1999.
That brings me to the question whether or not a "contrary intention appears" within the meaning of s 37(1). That is to be determined in this case on the proper construction of the 1999 Amendment.
There is no express provision of the 1999 Amendment which directly varies or excludes the operation of s 37(1) of the Interpretation Act to the repeals effected by the 1999 Amendment, save for what may be understood by or implied from s 32(6) and s 32(7) of the 1999 Amendment which have been set out earlier in these reasons. The essential question, therefore, is whether s 32(7) of the 1999 Amendment reveals a contrary legislative intention within the meaning of the introductory words of s 37(1). The actual provision made by s 32(7) is that the "amended provisions do not affect the awarding of damages in proceedings" which were commenced or for which leave was granted before 5 October 1999, and the former provisions continue to apply in relation to those proceedings. Thus, s 32(7) serves to make it clear that in those cases the amended provisions have no effect, but it is only by way of implication from what is not said that it might be inferred that in all cases not dealt with by s 32(7) the amended provisions, not the former provisions, are to apply from 5 October 1999. It is to be noted that s 32(7) does not make express provision to this effect, so that if the amended provisions are to be applied to all other cases it is by virtue of the repeal of the former provisions and the coming into force of the amended provisions on 5 October 1999. But that is precisely the situation for which s 37(1) of the Interpretation Act provides the normal rule.
Further, it is to be noted that s 32(7) of the 1999 Amendment appears to constitute an "express saving with respect to the appeals effected" by the 1999 Amendment, within the meaning of s 37(2) of the Interpretation Act. That being so, it is the effect of s 37(2) that the inclusion in the 1999 Amendment of s 32(7) "shall not be taken to prejudice the operation of [s 37 of the Interpretation Act] with respect to the effect of the repeals effected by the 1999 Amendment. There is no provision in the 1999 Amendment which expressly varies or excludes the operation of s 37(2) of the Interpretation Act. It is difficult, therefore, to imply or infer from s 32(7) a legislative intention that the former provisions are not to apply in all other cases, when s 37(2) seems to require that s 32(7) should not be taken to prejudice the operation of s 37(1).
In my view, had the legislature intended to exclude or modify the operation of s 37 with respect to the appeals effected by the 1999 Amendment, the inclusion of a few express words would have revealed and made clear that intention. Instead, in s 32(7) of the 1999 Amendment, the legislature has merely provided an express saving with respect to the repeals effected by the 1999 Amendment, which is a situation expressly provided for in s 37(2) of the Interpretation Act, and has not otherwise expressed an intention that s 37(1) of the Interpretation Act should not apply to the repeal. Thus, while the terms of s 32(7) of the 1999 Amendment, if take alone, might well suggest an intention to make an absolute provision which necessarily excluded or varied the operation of s 37(1), because s 32(7) is itself an "express saving" within the meaning of s 37(2) of the Interpretation Act the legislative intention is not clear. In these circumstances, the absence of an express provision that the operation of s 37(1) is varied or excluded is of particular significance. It appears to me that the absence must be taken to be deliberate.
At least in theory there is a further issue which arises from the Interpretation Act. For the reasons given it does not appear that a "contrary intention appears" within the meaning of s 37(1) of the Interpretation Act. There is also an anterior question, however, whether the application of the provisions of the Interpretation Act to the 1999 Amendment is precluded by s 3(1) of the Interpretation Act. That will be the case if (a) express provision is made to the contrary, which is not the present case, or if (b) the intent and object of the Act or something in its object or context is inconsistent with the application of the Interpretation Act. It is not immediately apparent, at least in the present context which directly concerns the intended effect of a repeal of an act of the Parliament, that there is any real difference in effect between s 3(1)(b) and the phrase "unless the contrary intention appears" in s 37(1) of the Interpretation Act. Both require the discernment of the true intention of the legislature with respect to the effect of the repeal. It is not apparent to me, therefore, for the reasons already given, that there is reason pursuant to s 3(1)(b) to exclude the operation of the provisions of s 37 of the Interpretation Act from the 1999 Amendment.
For these reasons, in my view, the present appellant may by virtue of s 37(1) of the Interpretation Act, and a grant of leave now made by this Court, institute proceedings in the District Court for damages at common law which proceedings are to be determined in accordance with the former provisions, ie the provisions of the Act in force before 5 October 1999, which continue to apply in respect of those proceedings as if the 1999 Amendment had not been passed.
This accords with the decision reached by the majority in Musgrove v Minister for Transport (supra).
For these reasons I would allow the appeal and set aside the order of the District Court made on 20 May 1999 refusing leave to commence proceedings, and substitute an order that the appellant (plaintiff) have leave to institute proceedings to recover damages at common law in respect of personal injury sustained in the course of his employment with the respondent (defendant), whether on 16 June 1995, or subsequently, or both. This order reflects an amendment sought by the appellant on the hearing of the appeal to more adequately reflect the evidence as to the date of injury. The original application had been confined to injuries sustained on 16 June 1995. I would also set aside the order of the District Court that the appellant pay the defendant's costs of the application for leave to that Court and substitute an order that the respondent (defendant) pay the costs of that application.

WHEELER J: I have had the advantage of reading in draft the reasons for decision of Parker J. I respectfully agree with his Honour's analysis of the factual merits of the appeal. So far as the reconsideration of Musgrove v Minister for Transport [2000] WASCA 232 is concerned, I would not depart from that decision. However, I wish to express my own reasons for reaching that conclusion.
In my approach to Musgrove, I take as my starting point the principles enunciated in Archer v Howell (1992) 7 WAR 33 at 45 (per Malcolm CJ) and Ex parte Cable Sands (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 980734; 21 December 1998 (Steytler J at p18). A Full Court of this Court, even if comprised of five Judges, will not lightly depart from one of its previous decisions, although it will do so in circumstances in which it is convinced that the earlier decision was wrong or when there is some other compelling reason why the previous decision should no longer be followed.
It is my present view that it is arguable that the reasoning in Musgrove was in error. However, my reasons for doubting the correctness of parts of Musgrove rest upon considerations which were not fully explored during the course of argument. One of them I raised with counsel for the respondent, whose argument it was that Musgrove was in error, but he preferred to place his argument on a different basis altogether. The other I raised with each counsel, and each expressly declined to argue the point, saying (in my view wrongly) that it had been "settled" in Musgrove and that neither challenged the decision on that point. The arguments which were advanced by the respondent to suggest that Musgrove was wrongly decided I did not find compelling.
While, in my view, the court is not confined to the arguments put on either side, but can and should think for itself, I would consider it inappropriate to disturb an earlier decision of a Full Court of this Court on a basis which had not been advanced by any party and which had not been fully explored in argument. In order to give the background to these conclusions, I set out briefly the reasoning which at present - without the benefit of argument - I would have been inclined to prefer.
It appears to me that the argument both in Musgrove and in this case proceeded from a wrong starting point. In this case, and it appears from reading the judgments in Musgrove also in that case, there was a consideration of s 32(5) - (8) of the Workers' Compensation and Rehabilitation Amendment Act 1999 (the 1999 provisions), without consideration of the statutory context of the Workers' Compensation and Rehabilitation Act 1981 (the existing Act), which those provisions amended. The question was posed as to whether the repeal of s 93D through to s 93F of the existing Act and their replacement by a new s 93D through to s 93G, together with the transitional provisions of s 32(6) and (7), affected either the "right" to obtain the leave of the District Court to commence an action for damages, or the "right" to obtain damages in prescribed circumstances, which existed prior to the date of the 1999 provisions. Section 37 of the Interpretation Act was the reason given by Wallwork J in Musgrove for concluding that those rights were unaffected, while Ipp J took the view that, because it was necessary to construe the 1999 provisions so as not to render the right to appeal (which was not expressly excluded) nugatory, it was necessary to read certain words into the transitional provisions, s 32(7).
It appears to me, however, that the starting point for any inquiry is to ask what the Workers' Compensation and Rehabilitation Act 1981 as amended requires, and to consider whether it affects the position of the appellant. The inquiry will take place in the context of the common law rule that generally, "… a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events": Maxwell v Murphy (1957) 96 CLR 261 per Dixon J at 267. In the context of this particular statute, I think it is instructive to consider the application of that principle in Fisher v Hebburn (1960) 105 CLR 188. In that case, the High Court had to consider a provision of the Workers' Compensation Act 1926 (NSW). It provided:
"Compensation shall be payable in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity of the worker. Such compensation shall be payable as if such total or partial incapacity had in fact resulted from the injury.
'Existing incapacity' means total incapacity by disease or otherwise -
(a)not entitling the worker to compensation under this Act; and
(b)existing at the time when the total or partial incapacity would otherwise have resulted from the injury."
The court held that the subsection applied to all cases of incapacity occurring after the date of its commencement, whether the injury from which the incapacity resulted occurred before or after that date. A detailed analysis of the particular provision and its statutory context was undertaken by Kitto and Menzies JJ, with whose judgment McTiernan and Windeyer JJ agreed. The decision of Fullagar J was to similar effect, and it contains an enunciation of principle of general application, and its application to the particular case, which assists here. At 194 his Honour said:
"There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement. The rule has been frequently applied to amending statutes relating to workers' compensation, and it has often been held that such amendments apply only in respect of 'accidents' or 'injuries' occurring after their coming into force [citations omitted]. But there is no rule of law that such statutes must be so construed, and it would not be true to say that a retrospective effect can only be avoided by confining the operation of such a statute to subsequently occurring 'accidents' or 'injuries'. It may truly be said to operate prospectively only, although its prospect begins, so to speak, with some other event than accident or injury.
This is, I think, the case here. I think the prospect of [the new provision] begins with incapacity and not with injury. It applies, in my opinion, on its true construction, to all cases in which incapacity occurs after its commencement, whether the 'injury', from which the incapacity resulted, occurred before or after its commencement. It is true that it begins with a reference to compensation 'payable in respect of an injury'. But compensation is not payable until incapacity results from an injury. The whole subject matter of the subsection is incapacity."
I set out below what appear to me to be the relevant provisions of the Workers' Compensation and Rehabilitation Act as amended by the 1999 provisions.
"Division 2 - Constraints on awards of
common law damages
Definitions for this Division
93A.In this Division -
…
'damages' does not include -
(a)any sum required or authorized 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;
…
Application of this Division
93B.(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.
…
Limit on powers of courts
93C.If this Division applies a court is not to award damages to a person contrary to this Division.
…
Assessment of disability
[s93D sets out the manner of assessing the degree of disability of the worker]
…
Restrictions on awarding of damages and payment of compensation
93E.…
(3)       Damages can only be awarded 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 elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.
(4)       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.
…
Restrictions on awarding and amount of damages if disability less than 30%
93F.(1)       Unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of section 93E -
(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded; and
(b)the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree.
…"
In my view, the "prospect", to adopt the expression of Fullagar J, of Division 2 is the occasion on which the Court considers the award of damages, rather than the occurrence of an accident or the sustaining of injury or any other event. This appears from a number of sources: the heading of the Division; s 93B's provision that the Division applies "to the awarding of damages"; the words of s 93E(3) that "Damages can only be awarded if …"; and, most importantly in my view, from the words of s 93C that if the Division applies, a court "is not to award damages" contrary to the Division. The effect of the 1999 amendments together with the provisions of the existing Act into which they were incorporated, can only be, in my view, to set up a scheme which prohibits the awarding of damages, after the entry into force of the 1999 amendments, whenever the injury occurred and whether or not legal proceedings may have been commenced before that date, unless the award complies with s 93D and following sections. To adopt the words of Fullagar J, the "whole subject matter" of the Division is the award of damages.

The transitional provisions of the 1999 amendments reinforce that conclusion, although they are not necessary for it. They reveal, in my view, a parliamentary assumption that, in the absence of those provisions, even those workers who had commenced proceedings or had obtained leave for the commencement of proceedings prior to the entry into force of those amendments, would be precluded from obtaining damages unless they fell within the scope of the substituted s 93D and following. Those transitional provisions are as follows:
"(6)In subsections (7) and (8) -
'amended provisions' means Part IV Division 2 of the principal Act as amended by this section;
'assent day' means the day on which this Act receives the Royal Assent;
'former provisions' means Part IV Division 2 of the principal Act before it was amended by this section.
(7)The amended provisions do not affect the awarding of damages in proceedings -
(a)commenced before the assent day; or
(b)for the commencement of which the District Court gave leave under the former provisions before the assent day,
and the former provisions continue to apply in relation to those proceedings."
It follows from what I have said, that in my view this is not a mere case of a repeal of legislation which granted a right, together with enactment of transitional provisions preserving that right in some circumstances. Rather, the legislative scheme is one in which, from the date of assent to the 1999 provisions, there is a substitution, for a right to damages in some circumstances, of a right to damages in other circumstances, which are defined, together with a statutory prohibition on the awarding of damages from that date, in any circumstances other than those which are newly defined. The legislature has then expressly provided that in a defined category of cases, damages may be awarded under the former provisions rather than under the new provisions. In such a case, it is my view that s 37 of the Interpretation Act can have no application. That section relevantly provides:
"37.General Savings on Repeal
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(c)affect any right … acquired, accrued … or exercisable … prior to the repeal;
…
(f)affect any … legal proceeding or remedy in respect of any such right …
And any such … legal proceeding or remedy may be instituted, continued or enforced … as if the repealing written law had not been passed or made."
In my view, the contrary intention appears in this case, not by implication from the transitional provisions (s 32(6) and (7) of the Workers' Compensation and Rehabilitation Amendment Act 1999), but from the express command in s 93C which, together with s 93B, appears to me to demonstrate an intention that damages may be awarded only in accordance with the provisions of that Division, and that any damages which may otherwise have been able to be awarded are excluded. From the date of assent to the 1999 amendments, then, leaving aside the transitional provisions, the circumstances in which damages might be awarded did not include circumstances in which, pursuant to the former provisions, a person had either made an application for leave or had an application for leave determined, or had received a grant of leave from the District Court. A new and different regime applied.
It appears to me therefore, that the appellant could only be awarded damages if he fell within the transitional provisions as a person who had either commenced proceedings prior to the date of assent to the 1999 amendments (which he had not), or if the District Court had given him leave under the former provisions for the commencement of proceedings prior to the assent day. The right to appeal from a decision of the District Court refusing leave to commence proceedings remained, either by reason of the general principles of interpretation or by reason of s 37 of the Interpretation Act, because it was not expressly excluded. However, the effect of the exercise of that right would be determined in accordance with the regime provided by the 1999 provisions and the general law governing the effect of an order made on appeal.
This gives rise to the question of what it means for the District Court to give leave "prior to the assent day", and raises the issue of the correctness of the reasoning of Ipp J in Musgrove's case. The argument was put to the court in that case that any order made by this Court varying the order of the District Court would remain an order of this Court and should not be construed as being an order by the District Court giving leave under the former provisions before the assent day. That argument was said to be based on the proposition that any variation of the order of the District Court by this Court would be an order made on the date on which it was given and could not be regarded as being backdated in any respect. Ipp and Wallwork JJ accepted that proposition, referring to Borthwick v Elderslie Steamship Co (No 2) [1905] 2 KB 516 and Nicol v Allyacht Spars Pty Ltd (1988) 165 CLR 306.
I will return to the backdating question in a moment. As to the first part of the argument referred to, that is, that an order varying the order of the District Court would "remain an order of this Court", I agree with Parker J that by reason of s 79(2) of the District Court of Western Australia Act 1969 and s 59(4) of the Supreme Court Act 1935, an order of this Court substituting an order that leave to commence proceedings be granted would for relevant purposes be a grant of leave by the District Court.
Having accepted that an order of this Court substituting a grant of leave would be an order made on the date on which it was given, Ipp J then noted that it was accepted by counsel that it would follow that, where an error had occurred on the part of the District Court Judge and an application for leave had been timeously made, a claimant would nevertheless have lost a right to claim damages, thereby in effect depriving an appellant of the right to appeal against an erroneous decision of the District Court. His Honour commented that one would expect such an unfair consequence to appear very clearly from the words of the Act if that were the parliamentary intention. He further noted that no part of the amending Act expressly excluded appeals to this Court from any decision of the District Court giving or refusing leave to commence proceedings. His Honour considered that it was implicit in the scheme of the amendments that the appeal provisions continued to apply and that it would be wrong to construe s 32(7) in such a way as to render them nugatory. On that basis, his Honour formed the view that s 32(7) should in effect be read by inserting the words "or should have given" after the word "gave" in s 32(7)(b) of the transitional provisions.
The insertion into a statute of words which do not there appear, as distinct from the reading of words which do appear in what may not be their most usual or natural meaning, is not a step to be taken lightly. "To read words into any statute is a strong thing and, in the absence of clear necessity, a wrong thing …" (Western Australia v The Commonwealth (1975) 134 CLR 201 at 251 per Stephen J, cited in Bird v The Commonwealth (1988) 165 CLR 1 at 6 per Mason CJ, Brennan and Toohey JJ). If it is indeed the case that any other reading would have the result that the right of appeal would be rendered nugatory, then I would not consider that Ipp J was in error in inserting those words into the statute.
However, it is not at present entirely clear to me that this result would otherwise follow. In Borthwick v Elderslie, the finding sufficiently appears from the headnote. It reads:
"Where a plaintiff fails in a Court of first instance … but on appeal an order is made that judgment should be entered in his favour for an amount of damages to be ascertained, the judgment does not, as a matter of course, take effect from the date of the trial of the action … but it will only take effect from the date on which it was given in the court of appeal, unless an order is made by that court under Order XLI, rule 3, that its judgment shall be antedated." (emphasis supplied)
In Nicol v Allyacht Spars, the High Court held that the court's power to "give such judgment as ought to have been given in the first instance" in the exercise of its appellate jurisdiction did not make the High Court's order equivalent to a judgment of the court appealed from and taking effect from the date of the judgment below. The court noted in that case that the parties had made no reference to O 43 r 3 of the High Court Rules and nor had any application been made under that rule (p309).
The equivalent of O XLI r 3 and of O 43 r 3 is, in this Court, O 42 r 2. It reads:
"2.(1) A judgment or order of the court takes effect from the day of its date.
(2)Such judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day."
The power to antedate will be exercised cautiously (Borthwick v Elderslie) but appears to be wide enough to permit the court to backdate a reserved judgment delivered after the death of a party to the date the judgment was reserved so that a delay by the court does not lead to disadvantage (Turner v London and South West Railway Co [1874] LR 17 Eq 561). I would have thought it arguable that the power should be exercised in the case where, as here, the notice of appeal was dated prior to the assent date, provided at least that the appeal had been prosecuted with diligence. However, although I expressly raised this question with counsel, counsel for the appellant did not wish to explore it on the basis that it "has its own difficulties, and that it was not necessary for his argument to do so", while counsel for the respondent asserted that this was a matter "decided in the respondent's favour" in Musgrove and not challenged by the appellant.
It is by no means clear to me, on a reading of Musgrove's case, that the question of whether any power to antedate either existed or should be exercised was raised in Musgrove; rather, the flavour of the judgments of both Ipp and Wallwork JJ suggests to me that their Honours were reasoning from what I might describe as the "usual position" that a judgment will be dated as of the day on which it is pronounced. The problem which arises from the lack of any exploration of this issue is that if a power to antedate exists, then it would not be necessary to read words into the transitional provisions in order to ensure that the right of appeal, which was not excluded, was not nugatory.
If a power to antedate exists, then, on a natural reading of the words of the transitional provisions, it would appear to be open to some persons who had been wrongly refused leave by the District Court to appeal to this Court and to argue that theirs were the exceptional circumstances in which it would be appropriate for the court to exercise its power to antedate a judgment, so that the judgment would indeed take effect as a judgment of the District Court given prior to the assent day. The existence of the power to backdate would explain why Parliament neither expressly provided for the case of a person wrongly refused leave to commence proceedings, nor found it necessary to make reference to the right of appeal. The Parliamentary intention would presumably be to leave such exceptional cases to the discretion of the court.
While I would not, therefore, disagree with the manner of reasoning adopted by Ipp J, I would doubt whether the premise from which his Honour appears to proceed - that is, that all judgments in appeals of this kind will take effect as of the day on which they are pronounced - is correct, and it does not appear that this issue was ever fully argued before his Honour. In those circumstances, as I have indicated, I would not depart from the decision in Musgrove. However, I have considered it necessary to set out the views which I would tentatively consider to be the correct ones, should legislation in the unusual form of the 1999 amendments ever fall for consideration in the future.