Transfield Pty Ltd v Rawstron
[2005] WASCA 78
•29 APRIL 2005
TRANSFIELD PTY LTD -v- RAWSTRON [2005] WASCA 78
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 78 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:1/2004 | 16 FEBRUARY 2005 | |
| Coram: | STEYTLER P MCLURE JA PULLIN JA | 29/04/05 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Respondent's action against the appellant to be struck out | ||
| A | |||
| PDF Version |
| Parties: | TRANSFIELD PTY LTD DAVID RAWSTRON |
Catchwords: | Workers' compensation Injury sustained on building site Section 175 Workers' Compensation and Rehabilitation Act 1981 (WA) Whether appellant a "deemed employer" Whether compensation payable, enlivening s 93B Workers' Compensation and Rehabilitation Act 1981 (WA) Leave of District Court to commence proceedings not obtained prior to coming into effect of either of Workers' Compensation and Rehabilitation Act 1999 (WA) or Workers' Compensation (Common Law Proceedings) Act 2004 (WA) Whether action rendered a nullity Construction and effect of s 5 Workers' Compensation (Common Law Proceedings) Act 2004 (WA) and s 32(7) Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) Whether defence of waiver or estoppel arose from mere inaction |
Legislation: | Interpretation Act 1984 (WA), s 37 Occupiers' Liability Act 1985 (WA), s 5(1) Rules of the Supreme Court 1971 (WA), O 20 r 19(1) Trade Practices Act 1974 (Cth), s 18, s 22, s 75AD Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 5(1)(a), s 5(1)(b), s 5(2), s 5(3), s 7(2) Workers' Compensation and Rehabilitation Act 1981 (WA), s 5(a), s 18, s 22, s 93B, s 93B(1)(a), s 93B(1)(b), s 93B(2), s 93C, s 93D, s 93D(4), s 93E(3), s 175, s 175(1), s 175(3), s 175(7), Sch 1 Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32, s 32(7), s 32(7)(b), s 32(7)(c), s 32(7)(f) |
Case References: | Commonwealth v Verwayen (1990) 170 CLR 394 Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428 Harvey v Aerodrome Management Services Pty Ltd [2004] WADC 115 Hewitt v Benale Pty Ltd (2002) 27 WAR 91 Jones v Bartlett (2000) 205 CLR 166 Newcombe v AME Properties Ltd (1995) 14 WAR 259 Re Monger; Ex parte Cross [2004] WASCA 176 Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139 Wright v Vanderplank (1856) 44 ER 340 Attorney-General v Vernazza [1960] AC 965 Ilievska-Dieva v SGIO Insurance Ltd [2000] WASCA 161 Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 Koljibabic v WMC Resources [2003] HCATrans 427 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 Niven v Grant (1903) 29 VLR 102 Royal v Alcoa of Australia Ltd [2004] WASCA 269 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TRANSFIELD PTY LTD -v- RAWSTRON [2005] WASCA 78 CORAM : STEYTLER P
- MCLURE JA
PULLIN JA
- Appellant
AND
DAVID RAWSTRON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER GILES
File No : CIV 4210 of 1997
Catchwords:
Workers' compensation - Injury sustained on building site - Section 175 Workers' Compensation and Rehabilitation Act 1981 (WA) - Whether appellant a "deemed employer" - Whether compensation payable, enlivening s 93B Workers' Compensation and Rehabilitation Act 1981 (WA) - Leave of District
(Page 2)
Court to commence proceedings not obtained prior to coming into effect of either of Workers' Compensation and Rehabilitation Act 1999 (WA) or Workers' Compensation (Common Law Proceedings) Act 2004 (WA) - Whether action rendered a nullity - Construction and effect of s 5 Workers' Compensation (Common Law Proceedings) Act 2004 (WA) and s 32(7) Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) - Whether defence of waiver or estoppel arose from mere inaction
Legislation:
Interpretation Act 1984 (WA), s 37
Occupiers' Liability Act 1985 (WA), s 5(1)
Rules of the Supreme Court 1971 (WA), O 20 r 19(1)
Trade Practices Act 1974 (Cth), s 18, s 22, s 75AD
Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 5(1)(a), s 5(1)(b), s 5(2), s 5(3), s 7(2)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 5(a), s 18, s 22, s 93B, s 93B(1)(a), s 93B(1)(b), s 93B(2), s 93C, s 93D, s 93D(4), s 93E(3), s 175, s 175(1), s 175(3), s 175(7), Sch 1
Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32, s 32(7), s 32(7)(b), s 32(7)(c), s 32(7)(f)
Result:
Appeal allowed
Respondent's action against the appellant to be struck out
Category: A
Representation:
Counsel:
Appellant : Mr J P Wilson
Respondent : Mr B L Nugawela
Solicitors:
Appellant : Srdarov Richards Burton
Respondent : Friedman Lurie Singh & D'Angelo
(Page 3)
Case(s) referred to in judgment(s):
Commonwealth v Verwayen (1990) 170 CLR 394
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Harvey v Aerodrome Management Services Pty Ltd [2004] WADC 115
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Jones v Bartlett (2000) 205 CLR 166
Newcombe v AME Properties Ltd (1995) 14 WAR 259
Re Monger; Ex parte Cross [2004] WASCA 176
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139
Wright v Vanderplank (1856) 44 ER 340
Case(s) also cited:
Attorney-General v Vernazza [1960] AC 965
Ilievska-Dieva v SGIO Insurance Ltd [2000] WASCA 161
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Koljibabic v WMC Resources [2003] HCATrans 427
MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355
Niven v Grant (1903) 29 VLR 102
Royal v Alcoa of Australia Ltd [2004] WASCA 269
(Page 4)
1 STEYTLER P: The respondent is a carpenter. He was injured in a construction site accident on 25 May 1995. By writ issued on 24 November 1997 he sued his employer, Ketta Nominees Pty Ltd ("Ketta"), for damages, alleging, in effect, that it had negligently failed to provide him with a safe system and place of work. He had sought, and obtained, leave to do so under s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the 1981 Act") as it then stood.
2 By amendment to his writ and statement of claim made on 9 July 1998 the respondent joined the appellant as a second defendant to the action. The respondent alleged, in his statement of claim, that the appellant had been the head contractor in the construction project on which the respondent had been working at the time of his injury. He pleaded that the appellant had subcontracted to Ketta a portion of the work on the construction project. He alleged, in effect, that the appellant had failed to ensure that his workplace was safe, in breach of s 5(1) of the Occupiers' Liability Act 1985 (WA).
3 The respondent did not obtain the leave of the District Court under the then provisions of s 93D(4) of the 1981 Act in order to join the appellant as a defendant. He had, on 8 September 1999, filed and served an application under s 93D(4) for leave to commence the proceedings against the appellant, but that application was never proceeded with.
4 Section 93B of the 1981 Act provides, so far as is relevant, that:
"(1) This Division [Div 2, in which s 93D is also contained] 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.
…".
(Page 5)
5 Section 93D(4) of the 1981 Act provided, at the material time, that:
"Proceedings in which damages are sought are not to be commenced without the leave of the District Court."
The application to strike out
6 On 21 October 1999 the appellant applied to strike out the respondent's by then re-amended statement of claim, insofar as it pleaded a cause of action against the appellant. It contended that, because the respondent was injured while performing work undertaken by his employer, Ketta, as a subcontractor to the appellant, as head contractor, the appellant was deemed by s 175 of the 1981 Act to be the respondent's employer. Hence, it said, the respondent was required by the Act to obtain leave to bring proceedings for damages, but no such leave had been obtained.
7 Sections 175(1) and (3) of the 1981 Act provide that:
"(1) Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act.
…
(3) The principal is not liable under this section unless the work on which the worker is employed at the time of the occurrence of the disability is directly a part or process in the trade or business of the principal."
8 Counsel for the appellant contended that, on the face of what was pleaded in the re-amended statement of claim, s 175(1) was applicable. Moreover, he contended that it should necessarily be inferred from what was pleaded in the re-amended statement of claim that the work in which the respondent had been employed at the time of his injury was directly a part or process in the trade or business of the appellant, as head contractor and, hence, that s 175(3) was satisfied.
(Page 6)
The judgment of the primary Court
9 When the application came on for hearing before a Commissioner of the District Court, she dismissed it. She referred to a submission by counsel for the respondent that the position of the appellant "in the scheme of things is not as a deemed employer pursuant to section 175 at all, but as an occupier of the premises in which the plaintiff was injured". She went on to say that this was reflected in the statement of claim against the appellant which, she said, was couched in terms of a claim based on occupier's liability. Next, she appears to have accepted a contention advanced on behalf of the respondent that his statement of claim made no assertion that the work on which the respondent had been employed at the time of his injury had been "directly a part or process in the trade or business of" the appellant, leaving open the possibility that this prerequisite to liability provided for by s 175(3) had not been satisfied. She also accepted that the respondent "did not admit that the … [appellant] was a principal in the contracting relationship". She consequently found that there were "factual matters about the trade and business of the principal which … [could] only be determined at trial". She added that the law in that area was "in a state of flux" and that a number of cases which had been before the Full Court had been the subject of special leave applications to the High Court and that none of these had yet been determined.
Issues on the appeal
10 The appellant has raised two grounds of appeal (leave having been given on 12 December 2003). They are as follows:
"1. The Commissioner erred in holding that the Re-Amended Statement of Claim did not allege all of the elements required to establish that the Appellant (Second Defendant) was a 'deemed employer' for the purposes [sic] s 175 of the Workers' Compensation & Rehabilitation Act 1981 (WA), and specifically that it was not apparent that the Respondent (Plaintiff) was engaged in work (at the time of suffering the disability) that was directly a part or process of the trade or business of the Appellant (Second Defendant) (ie s 175(3)).
2. The Commissioner erred when she held that the Respondent (Plaintiff) was entitled to pursue an action against the Appellant (Second Defendant), based on an alleged breach of a duty of care owed pursuant to the
(Page 7)
- Occupier's [sic] Liability Act 1985 (WA), as opposed to a cause of action based on a relationship of 'deemed employer', thereby failing to recognise that it was the Appellant's (Second Defendant's) status as a 'deemed employer', rather than the cause of action against it, that determined whether the Action against the Appellant (Second Defendant) was maintainable."
11 Counsel for the respondent, in his outline of submissions, sought to answer the appeal, not only by supporting the judgment of the Commissioner, but also by raising matters other than those which had been considered by her. These were not the subject of any formal notice of contention. However, because the respondent's outline was received by the solicitors for the appellant in advance of the hearing, and because counsel for the appellant acknowledged that he was in a position to deal with these contentions, the respondent was given leave to raise them.
12 The upshot of this is that the following issues arise for determination:
(a) Was there sufficient in the respondent's pleading to demonstrate that the appellant was the respondent's "deemed employer" under s 175 of the 1981 Act?
(b) Was compensation payable under the 1981 Act in respect of the pleaded injuries?
(c) If the answer to each of questions (a) and (b) is "yes", was leave required in order to bring the action against the appellant?
(d) If the answer to question (c) is "yes", was the action against the appellant a nullity, because of the respondent's failure to obtain leave?
13 I will deal with each of these questions in turn.
Was the appellant the respondent's "deemed employer"?
14 As will be apparent, the Commissioner identified two elements which, she said, were not pleaded in the re-amended statement of claim and which were required to be proved before the appellant could be deemed, by s 175, to be the respondent's employer. The first is that the appellant had contracted, as principal, with the respondent's employer, Ketta, as contractor, for the execution of work. The second is that the work on which the respondent was employed at the time of the occurrence
(Page 8)
- of his disability was "directly a part or process in the trade or business of the principal".
15 In my respectful opinion the Commissioner was plainly in error in the first of those respects. Paragraphs 2.3 and 2.4 of the re-amended statement of claim read as follows:
"2.3 At all material times, the Second Defendant [the appellant] was engaged as the head contractor in a construction project ('construction project') undertaken on the building site known as the Capral Aluminium Factory and situated at 45 Baille Road, Canningvale [sic], Western Australia ('work site'). The Second Defendant was thus an 'occupier of premises' within the meaning of section 2 of the Occupiers' Liability Act.
2.4 By a written agreement dated 24 February 1995, the First Defendant [Ketta] sub-contracted with the Second Defendant to perform construction work ('construction work') for the construction project on the work site."
16 The word "principal" is defined, for the purposes of s 175, in s 175(6)(a) as follows:
"'principal' includes the original principal for whom the work is being done and each contractor who constitutes himself a principal with respect to a sub-contractor by contracting with him for the execution by him of the whole or any part of the work."
17 It is consequently obvious, from the pleaded paragraphs, that the appellant was a "principal" within the meaning of that definition.
18 As to the second element, it seems to me that this, too, sufficiently appeared from the pleading. The words "trade or business", in their context in an Act making provision for the payment of workers' compensation, are, as I read them, intended to distinguish between work on private or domestic matters, on the one hand, and work performed for trade or business purposes, on the other. It is apparent, from the pleading, that the work performed by the respondent fell within the latter, and not the former, category. Paragraphs 2 and 3 of the re-amended statement of claim make it plain that the appellant had contracted to undertake a construction project on the work site at which the respondent was injured and hence that the undertaking of this project was a part or process in its
(Page 9)
- trade or business. It is also plain, from the pleading, that the work on which the respondent was employed at the time of the occurrence of his disability was work on the construction project (he pleads, in par 3, that he was, on the day of his injury, performing the construction work subcontracted to Ketta on the work site) and hence that it was directly a part or process in that trade or business.
19 However, counsel for the respondent raised the contention, not considered by the primary Court, that there is no allegation in the re-amended statement of claim that the respondent's injury was sustained in "the execution of any work by or under the contractor" and hence nothing to say that this element, required for the operation of s 175, was satisfied.
20 The respondent pleads, in par 1 of the re-amended statement of claim, that he was employed by Ketta as a carpenter. I have said that he pleads, in pars 2.3 and 2.4, that Ketta subcontracted with the appellant to perform construction work for the construction project on the work site on which the appellant had undertaken the construction project. Paragraphs 3, 4 and 5 of the re-amended statement of claim plead that:
"3 On 25 May 1995 ('the material date') the Plaintiff in the course of the employment was performing the construction work on the work site.
4 The Plaintiff was required to assist in the construction of electrical cable trenches at the work site which involved the Plaintiff building form cement trenches in the base of a building.
5 On the material date the Plaintiff was in the process of forming the walls of the trenches. As the trenches were all interconnecting the Plaintiff moved along the work site by walking on top of the formwork. In the process of so doing the Plaintiff tripped on the formwork and fell approximately one metre onto rubble and debris, thereby falling heavily onto his left wrist ('the accident')."
21 It seems to me to be quite plain from these paragraphs that, according to the respondent's pleading, his disability was sustained in the course of his execution of work contracted for by Ketta under its contract with the appellant. It was consequently sustained in the execution of work "by … the contractor" for the purposes of s 175.
(Page 10)
22 Next, counsel for the respondent raised the contention (also not considered by the primary Court) that there is no allegation in the re-amended statement of claim that the appellant had undertaken to execute work on the premises in which the disability occurred or that those premises were under the appellant's control or management. Hence, he said, the operation of s 175 might yet be shown to be excluded by the provisions of s 175(7) of the 1981 Act, which read as follows:
"Where the disability does not occur in respect of premises on which the principal has undertaken to execute the work or which are otherwise under his control or management, subsections (1) to (6) inclusive do not apply."
23 However, the re-amended statement of claim does allege that the appellant had undertaken to execute work on the premises in which the disability occurred. As will be apparent, par 2.3 alleges that the appellant was "engaged" as "head contractor in a construction project … undertaken on" the work site on which, according to pars 3 and 5, the accident leading to the disability occurred. The undertaking of a construction project is plainly the execution of work and this work is pleaded to have been undertaken in pursuance of the engagement.
24 It consequently does not matter, for the purposes of s 175(7), whether or not the work site was under the appellant's control or management, the two limbs of that section being, in my opinion, plainly intended to operate disjunctively. In any event, it might readily be inferred from the re-amended statement of claim that the building site must have been under the appellant's control or management, in its capacity as head contractor. Moreover, the particulars of the appellant's breach of duty pleaded in par 7 of the re-amended statement of claim (to the effect that the appellant failed to ensure that the work site was safe) give rise to the inference that the site was under the appellant's control or management.
25 Counsel for the respondent next urged upon us the proposition that, even if the re-amended statement of claim does, on the face of it, plead facts which bring to bear the operation of ss 175 and 93B, and hence s 93D(4), the action against the appellant should not have been struck out because other facts might emerge which shed new light on what has been pleaded.
26 We were referred, in this respect, to a decision of the District Court of Western Australia (Harvey v Aerodrome Management Services Pty
(Page 11)
- Ltd [2004] WADC 115) in which, on the facts, it was found that a worker who had suffered a disability had been working directly for the principal, although employed by a subcontractor, at the time of his injury and, hence, had not been injured in the execution of work by or under the contractor. Whatever may have been the position in that case, or in other cases, the appellant in this case was entitled, in applying to strike out the action against it, to rely upon what was pleaded against it. If the pleaded facts disclosed no valid cause of action against it, then, in the absence of an application to amend them, it was entitled to have the action struck out: O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA).
27 Finally, I should add, before leaving this issue, that counsel for the respondent contended (in his written outline of submissions) that s 175 of the 1981 Act has no application to s 93B of that Act and is "only concerned with statutory benefits". However, that contention (which was not pursued in oral submissions) is at odds with the recent decision of this Court in Hewitt v Benale Pty Ltd (2002) 27 WAR 91 and also with the use of the words "for the purposes of this Act" in s 175(1). Those words, on the face of it, refer to all of the purposes of the Act.
Was compensation payable in respect of the injuries?
28 As to the second of the issues identified above, counsel for the respondent contended that there is no allegation in the statement of claim that compensation was paid or payable in respect of the respondent's disability. Hence, he said, the requirement of s 93B(1)(b) of the 1981 Act was not shown to have been satisfied.
29 It is true that there is no allegation in the re-amended statement of claim that compensation was paid or is payable in respect of the respondent's disability. However, it seems to me that the conclusion that compensation was payable in respect of that disability necessarily follows from what has been pleaded. It is plain that the injuries were work caused. Paragraph 8 of the re-amended statement of claim pleads that they led to permanent disability, loss and damage. The injuries are pleaded to have been serious, encompassing a fractured left radius, related anxiety and depression and the development of a panic disorder and a generalised anxiety disorder. There are said, in par 8.3, to be significant residual disabilities and, in par 8.4, to be a number of lost amenities. Paragraph 8.5 pleads that the respondent has been largely unable to return to his previous occupation as a carpenter, that it is unlikely that he will ever do so and that his "perimeters of employment" have been severely reduced. A number of medical and allied expenses have been claimed in
(Page 12)
- par 8.6. It is consequently plain, from the pleading, that the respondent suffered a "disability" within the meaning of subpar (a) of the definition of that word in s 5 of the 1981 Act and that, under s 18 thereof read with Sch 1 of the 1981 Act, compensation is payable by the employer in respect of it.
30 While counsel for the respondent contended that there might be other factors, which the respondent had no need to plead as part of his cause of action, which might disentitle him from obtaining compensation under the 1981 Act, he referred us only to s 22 of the 1981 Act, which provides for a number of disentitling factors (other than in cases of death or serious and permanent disablement). However, s 93B speaks of compensation which is payable, "or would have been … payable but for section 22".
Was leave required in order to bring the action against the appellant?
31 It follows, from the answers to the preceding questions, that leave was required in order to bring the action against the appellant unless there is merit in the submission, apparently accepted by the Commissioner, that, because the cause of action as framed against the appellant was one for breach of statutory duty under s 5(1) of the Occupiers' Liability Act, it was not one which fell within the compass of s 93B and, hence, s 93D(4) of the 1981 Act.
32 With due respect to the Commissioner, there is, in my opinion, no merit in that submission. Section 93B(1)(a) speaks, in wide terms, of a disability caused by the negligence "or other tort" of the worker's employer. Section 93B(2) says that Div 2 applies even if the damages resulting from the negligence or other tort are "sought to be recovered in an action for breach of contract or other action". Leaving to one side the question whether the legislature intended, by s 93B, to catch any action for damages against a worker's employer, independently of the 1981 Act, in respect of the worker's disability, regardless of whether the injury was caused by negligence or some other tort, whether statutory or otherwise (an approach which was favoured in Newcombe v AME Properties Ltd (1995) 14 WAR 259, considered in more detail under the next heading), it is plain enough, from the re-amended statement of claim, that the respondent's injuries are said to have been caused by the negligence of the appellant.
33 Section 5(1) of the Occupiers' Liability Act imposes an obligation upon an occupier only to take "such care as in all the circumstances of the case is reasonable to see that … [an entrant] will not suffer injury or damage by reason of any … danger" due to the state of the premises or to
(Page 13)
- anything done or omitted to be done on the premises and for which the occupier is by law responsible. As Kirby J recognised in Jones v Bartlett (2000) 205 CLR 166 at 231 [226], nothing in that provision would take a plaintiff "beyond whatever claim he might have in respect of … [a] suggested breach of … [a] common law duty of care to him, framed in negligence". Similarly, in Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139 at 146, Malcolm CJ, with whom Franklyn and Murray JJ were in agreement, said that the purpose of the Occupiers' Liability Act "was to achieve by statute what was achieved by the development of the common law by decisions of the High Court". He said that the provisions of that Act did not create a new cause of action and only replaced "the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson".
34 The point is driven home, in this case, by the fact that the particulars of breach of statutory duty pleaded against the appellant, in pars 7.1 to 7.4, precisely mirror the particulars of negligence pleaded against Ketta in pars 6.1, 6.2, 6.4 and 6.5.
Was the action against the appellant a nullity?
35 That brings me to the last issue. Counsel for the appellant contended that, because no leave had been given under s 93D(4) of the 1981 Act to bring the action against the appellant, the action against it was a nullity.
36 The effect of non-compliance with s 93D(4) of the 1981 Act was considered in Newcombe, mentioned above. In that case the plaintiff issued a writ with an endorsed statement of claim in which he claimed damages against two defendants. The claim was in relation to injuries allegedly suffered by the plaintiff in the course of his employment by the first defendant. The plaintiff alleged breach of contract, negligence and breach of statutory duty as against the first defendant and breach of s 75AD of the Trade Practices Act 1974 (Cth) as against the second defendant. Following service of the writ, the first defendant applied to set aside the writ as against it. The matter came, ultimately, before the Full Court of this Court. The Court held that s 93D(4) of the 1981 Act applied to the proceedings against the first defendant (Malcolm CJ said, at 263, that "the plaintiff's claims for damages for negligence or breach of statutory duty clearly … [fell] within s 93B(1)(a)") and that, because they had been commenced without leave, they were a nullity.
(Page 14)
37 Then, on 5 October 1999, the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) ("the 1999 Act") received the Royal Assent. That Act did away with the requirement of leave but imposed more restrictive conditions on the awarding of common law damages. Section 32(7) thereof enacted transitional provisions, as follows:
"The amended provisions do not affect the awarding of damages in proceedings -
(a) commenced before the assent day [defined by s 32(6) to mean the day of receipt of the Royal Assent]; or
(b) for the commencement of which the District Court gave leave under the former provisions [defined by s 32(6) to mean Pt IV Div 2 of the 1981 Act before it was amended by s 32] before the assent day,
and the former provisions continue to apply in relation to those proceedings."
38 Some two years later, that section, and s 37 of the Interpretation Act 1984 (WA), were considered by the High Court in Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428. The last-mentioned section reads, relevantly, as follows:
"Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
…
(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;
…
(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,
(Page 15)
- 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."
39 In Dossett, the injured employee had applied to the District Court of Western Australia pursuant to s 93D(4) of the 1981 Act for leave to commence common law proceedings for the recovery of damages in respect of an employment injury. The Court held that the more restrictive amended provisions applied to his application even though it had been filed before the 1999 Act came into effect and that it had no power to give him leave to commence proceedings under s 93D(4). He appealed to the Full Court of the Supreme Court, but that Court dismissed his appeal. Scott J (with whom Anderson J and Stein AJ agreed) said that, because the District Court had not determined the employee's application before 5 October 1999, the transitional provisions in the 1999 Act did not save his application. On an appeal to it, the High Court held that s 32(7) of the 1999 Act did not effect an implied repeal of the relevant provisions of the Interpretation Act and that the employee was, as a consequence, entitled to proceed with his pending application for leave, which continued to be governed by the former provisions of s 93D of the 1981 Act: see 432 - 433 [16] and [17], per McHugh J, 438 [43] to [45], per Gummow, Hayne and Heydon JJ (where their Honours relied upon the fact that there was no statement in s 32(7) either that the two classes of proceedings there identified were the only proceedings in which the former provisions might continue to apply or that the subsection applied despite anything in any other statute), and 448 [88], per Kirby J.
40 On 25 October 2004 the Workers' Compensation (Common Law Proceedings) Act 2004 (WA) received the Royal Assent. Section 5 of that Act ("the 2004 Act"), which was, by force of subs (1)(a) thereof, to be read in conjunction with s 32 of the 1999 Act as if incorporated with and forming part of that section and, by force of subs (1)(b) thereof, to apply to s 32(7) of the 1999 Act, provided, by subs (2) and (3) that:
"(2) Despite section 37 of the Interpretation Act 1984 and any other law, written or unwritten but except as otherwise stated in subsection (3) or in the amended provisions [defined in s 4(1) to mean ss 93A to 93G of the 1981 Act as amended from time to time] -
(a) the amended provisions apply to, and affect the awarding of damages in, a proceeding; and
(Page 16)
- (b) the former provisions [defined in s 4(1) to have the same meaning as in s 32(6) of the 1999 Act] do not apply to, or affect the awarding of damages in, a proceeding,
- unless it is a proceeding -
(c) commenced before the assent day; or
(d) for the commencement of which a court gave leave under the former provisions before the assent day.
(3) Despite subsection (2), section 37 of the Interpretation Act 1984, and any other law, written or unwritten, but except as otherwise stated in section 6(4) [which is not presently relevant] -
(a) the amended provisions do not apply to, or affect the awarding of damages in, a proceeding; and
(b) the former provisions apply to, and affect the awarding of damages in, a proceeding,
that is a proceeding -
(c) commenced on or before the day on which this Act receives the Royal Assent with the leave of a court under the former provisions; or
(d) for the commencement of which a court gave leave under the former provisions on or before the day on which this Act receives the Royal Assent …".
"On and after the commencement day no court may hear or determine a former provisions matter [defined, by s 7(1)(a), to mean an application for leave to commence proceedings under the former provisions]."
42 Counsel for the appellant contended that there is nothing in either the 1999 Act or in the 2004 Act which alters the position that, under the 1981 Act, the proceedings instituted against the appellant are a nullity, as leave
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- was never obtained to bring them. He also contended that, even if they are not correctly described as a nullity, the effect of s 32(7) of the 1999 Act, read together with the provisions of the 2004 Act to which I have referred, is that leave to bring those proceedings cannot now be given and, indeed, that no Court might now hear or determine an application for leave to commence them.
43 As to the first of those contentions, I do not consider that, on the law as it stood immediately before the enactment of the 2004 Act, an action commenced at the time of the operation of the former provisions could be described as a nullity merely because leave was not obtained, as it should have been, under s 93D(4). In Dossett, at 442 [61], Kirby J referred to the requirement of s 93D of the 1981 Act as being a "procedural condition". What was said by him in this respect was relied upon by E M Heenan J in Re Monger; Ex parte Cross [2004] WASCA 176 at [164], where his Honour concluded that the constraints imposed by Div 2 of the Act (including s 93C thereof), all of which prohibited a court from awarding damages otherwise than in conformity with those provisions, were procedural in nature. He went on to say, at [165], that one of the consequences of this was that proceedings instituted without a grant of leave would not be invalid if leave was obtained subsequently on a nunc pro tunc basis. He also said (at [184]) that, because these "procedural" constraints bar the remedy rather than the right, they were "non-jurisdictional", leading to the conclusion that they might be waived (see also [208]). Malcolm CJ agreed with E M Heenan J (at [70]). So, too, did Wheeler J (at [115]). The other two members of the Court (Templeman and Pullin JJ) found it unnecessary to address the issue.
44 It consequently seems, on the strength of this authority (no challenge was mounted to Cross on behalf of the appellant), that a proceeding commenced under the 1981 Act without the requirement of leave having been satisfied was not, immediately prior to the passing of the 2004 Act, a nullity.
45 That brings me to counsel for the appellant's second contention.
46 I have set out the provisions of s 32(7) of the 1999 Act which effectively preserve the position which had existed prior to that Act coming into effect in respect of proceedings which had, by then, been "commenced" or for the commencement of which leave had, by then, been given. There was, during the hearing of the appeal, some debate as regards the question whether the word "commenced" means "lawfully commenced", in the sense that leave had been obtained. However, any
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- doubt in that respect seems to me to have been laid to rest by the enactment of s 5 of the 2004 Act, which, as I have said, is to be read in conjunction with s 32 of the 1999 Act, as if incorporated with and forming part of it and which applies to s 32(7) thereof.
47 While somewhat curiously worded, the effect of s 5(2) is to make clear what had seemingly previously been intended to be achieved by s 32(7) of the 1999 Act, namely that the former provisions apply to (and the amended provisions do not apply to) a proceeding commenced before 5 October 1999 or for the commencement of which leave had, by then, been given. The effect of s 5(3) is that, despite subs (2), the former provisions apply to (and the amended provisions do not apply to) a proceeding commenced on or before 25 October 2004 with the leave of a court given under the former provisions or for the commencement of which a court gave leave under those provisions on or before 25 October 2004. Consequently, it seems that if proceedings had been commenced before 5 October 1999, without leave, but leave nunc pro tunc had been obtained by 25 October 2004, the former provisions would apply. However, s 7(2) of the 2004 Act has the effect that, if leave had not by then been obtained in respect of those proceedings, no court can now grant leave to bring them.
48 The upshot of all of this is that the proceedings which have been commenced by the respondent against the appellant cannot now be the subject of a grant of leave. However, because the requirement of s 93D(4) of the 1981 Act has been held to be procedural, and hence to be susceptible to waiver or estoppel (notwithstanding that s 93C of that Act commands the Court itself not to award damages to a person contrary to Div 2), those proceedings still cannot be regarded as a nullity and should only be struck out if no arguable issue of waiver or estoppel has been raised.
49 Counsel for the respondent contends that pleas of waiver and estoppel are arguably open. As to a plea of waiver, he relies on the fact that the appellant filed its application to strike out the proceedings only on 21 October 1999, more then 15 months after it had been joined as a defendant and after the passing of the 1999 Act. He submitted that, at that time, it was "the conventional wisdom" that, if leave had not been obtained under s 93D before the coming into effect of the 1999 Act, the more restrictive provisions introduced by that Act were applicable and, by the time that Dossett was decided (on 4 December 2003) and it was appreciated that leave could be obtained nunc pro tunc (until the passing of the 2004 Act), the respondent's claim was already statute barred (a
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- contention which looks to be unsustainable, at least on the existing state of authority, given that the proceedings had been commenced within the six-year period fixed by statute and were not a nullity). As to a plea of estoppel, he suggested that an estoppel by representation might arguably arise out of the fact that, in a letter dated 19 January 2000 written by the appellant's then solicitors to the Director of the Conciliation and Review Directorate, a copy of which was sent to the respondent, the appellant disputed that it was the respondent's employer and said that it was consequently "not in a position to agree the [then] proposed level of the … [respondent's] disability".
50 It is not entirely clear to me in what sense a plea of waiver is said to be open, as distinct from one of estoppel against the assertion of a defence that would otherwise have been available. Whatever might be the position in that regard, it is clear that the respondent relies, in asserting defences of waiver and estoppel, only upon the appellant's inactivity which, he says, worked to his prejudice, and upon the contents of the letter to which I have referred.
51 I am not persuaded that there is anything in either or both of those things which could give rise to any arguable defence, whether of waiver or estoppel. It was always a requirement that the respondent obtain leave to bring his proceedings against the appellant. The fact that he did nothing until September 1999 to obtain leave, and then did not pursue the application which he filed in that regard, was not ascribable to anything done, or not done, by the appellant.
52 The appellant's mere inaction until 21 October 1999 did not even arguably amount to an election between inconsistent rights (Commonwealth v Verwayen (1990) 170 CLR 394 at 471 - 472, per Toohey J, and see Mason CJ at 406 - 407). The appellant was not, during that time, obliged to make any choice between raising, or not raising, the issue of failure to get leave and there was nothing, in the mere fact of its inactivity, to suggest that it had even turned its mind to that issue. While delay, or standing by, might be an element in the defence of waiver in the form of an election (see Brunyate, Limitation of Actions in Equity, 1932, Stevens & Sons, London, at pp 188 - 189, and Parkinson (ed), The Principles of Equity (2nd ed), 2003, Lawbook Co at [2916]), this will ordinarily only be so where the delay is evidence of a deliberate choice: see, for example, Wright v Vanderplank (1856) 44 ER 340.
53 Similarly, the mere fact of the applicant's inactivity was not, in the circumstances to which I have referred, sufficient to give rise to an
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- argument of estoppel. There is nothing in the evidence put forward which suggests that the respondent abstained from applying for leave because of some assumption induced by the appellant's inactivity, even if it be assumed that the requirements of unconscionability and detriment could be satisfied (see Verwayen at 413, per Mason CJ, 428 - 429, per Brennan J, and at 444, per Deane J). Nor does the respondent allege that he abstained from applying for leave because of the appellant's denial, in its solicitors' letter dated 19 January 2000, that it was the respondent's employer. That is hardly surprising, given that the letter said nothing as regards the question whether or not the respondent's failure to obtain leave would be raised against him.
54 There is consequently nothing in the matters relied upon to suggest that the respondent, or his solicitors, should not bear the responsibility for his failure to obtain leave.
Conclusion
55 It follows that in my opinion the appeal should be allowed and that the respondent's action against the appellant should be struck out as having no arguable prospect of success.
56 MCLURE JA: I agree with Steytler P.
57 PULLIN JA: The appeal should be allowed. I agree with the reasons and orders proposed by Steytler P.
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