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
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…
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- Case
- [2001] WASCA 131
- Decision Date
CaseChat Overview and Summary
The legal issues at hand were primarily concerned with the timing of the grant of leave to commence proceedings and the impact of subsequent legislative changes. The court had to decide whether the refusal of leave to commence the action was valid, given that the amendment to the Act was assented to while an appeal against this refusal was pending. The court also needed to interpret the relevant sections of the Workers' Compensation Act and consider the implications of the statutory amendment on existing legal proceedings.
In its reasoning, the Court referred to previous case law, particularly Samson v Industrial Progress Corporation Pty Ltd, which provided guidance on the approach to be taken when considering whether leave should be granted in such circumstances. The Court emphasised that the term "likely" in the context of the statutory provision should be interpreted as a substantial, rather than a remote, chance of success. It also noted that in the absence of a clear view of the relevant facts, the court should act on the view reasonably open on the evidence which most favours the applicant. The Court concluded that the refusal of leave to commence the action was wrongly decided and that the amendment to the Act would not affect the proceedings as the leave was sought and refused prior to the assent to the amending Act. Consequently, the Court allowed the appeal and ordered that leave to commence the action be granted.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by:
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.'