Van Oostveen, William v Commonwealth of Australia

[1998] FCA 1751

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 39  of   1998

BETWEEN:	WILLIAM VAN OOSTVEEN Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE(S):		SPENDER, COOPER AND MARSHALL JJ
DATE OF ORDER:		13/11/98
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. There be no order as to costs, either of the appeal, or of the notice of motion to strike out the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 39 of 1998

BETWEEN:	WILLIAM VAN OOSTVEEN Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE(S):	SPENDER, COOPER AND MARSHALL JJ
DATE:	13/11/98
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT

Because the Court has reached a firm conclusion as to the disposition of the appeal, it is appropriate to give a short form judgment in relation to the appeal. The primary judge held that the appellant had commenced proceedings against the respondent in circumstances where those proceedings were incapable of valid commencement in the absence of notice having been communicated pursuant to s 45(1) of the Safety Rehabilitation and Compensation Act 1988.

The primary judge described the failure to give such notices as “a fatal impediment to Mr Van Oostveen’s action.”  We agree.  His Honour correctly determined that the absence of such a notice was fatal to the applicant’s claim.  See The Commonwealth v Flaviano (1996) 40 NSWLR 199, and WB Kay Proprietary Limited v Grogan, an unreported decision of the Court of Appeal of Queensland of 12 August 1997, as well as the observations expressed by McHugh J when the High Court dismissed the application for special leave to appeal from the judgment of the Court of Appeal in Grogan’s case.

On the totality of the material before the primary judge, and before this Court on the appeal, there is just no material to indicate that Mr Van Oostveen ever made a conscious choice between the avenues available to him under the Safety Rehabilitation and Compensation Act, that is to say, whether to pursue remedies he may have under ss 24, 25 and 27 of the Act, or to pursue a claim for common law damages in respect of non-economic loss.  If in fact, as we find, there was no election in fact demonstrated on the material, nothing that passed between Mr Van Oostveen and officers of the Commonwealth could constitute an election.

We are not to be taken as agreeing that the election in writing required under section 45 has to demonstrate on its face that there has been a conscious recognition of the consequences of electing the avenues of relief available under the Act, and the avenue of common law damages for non-economic loss. That question, interesting though it is, does not arise on the facts of the present case. Consequently the appeal will be dismissed. As counsel for the Commonwealth, Mr Bickford, conceded correctly, it remains open to Mr Van Oostveen to make an election under s 45 of the Act, and to commence a new proceeding for damages for non-economic loss, if that is the course he wishes to embark on.

That election has to be not only made but communicated in writing to the respondent.  If in those proceedings a point is taken that the statute of limitations applies, then that will be a matter that will have to be resolved in those proceedings.  I would also indicate that the claim for damages for non-economic loss is a claim conventionally brought in the Supreme Court of Queensland, or the Supreme Court of New South Wales.  The Federal Court is only entitled to deal with such a matter by virtue of the cross-vesting legislation.  If the matter were to commence in the Federal Court it would be likely that the matter would be cross-vested to a Supreme Court, being the more appropriate forum for the hearing of such proceedings.

In addition to the appeal the respondent had filed a notice of motion to strike out the appeal on the basis that it failed to state any proper grounds for appeal.  In view of our conclusion above concerning the merits of the appeal, we do not find it necessary to deal with the motion to strike out, except to say that the Commonwealth in any event should not have its costs of the hearing before Dowsett J.

I would propose the following orders:

1. that the appeal be dismissed;

2. that having regard to the notice of motion and the events that occurred concerning it and the large amount of material associated with it, there ought not to be any order as to costs of the motion in favour of the Commonwealth of Australia.  Ordinarily Mr Van Oostveen would be ordered to pay the costs of the appeal, but in the special circumstances of this case, including the aspect of the motion to strike out, I would be minded to make no order as to costs, either of the appeal, or of the motion to strike out.

COOPER J: I agree. I wish to make one further observation. I regard as an open question the issue of the requisite requirements of the knowledge of an employee for the purpose of an election under section 45 of the Safety, Rehabilitation and Compensation Act 1988, (Cth).  I also regard as an open question the necessary content of any communication of that election made by an employee to the Commonwealth as required by the Act.  The present case was not an appropriate case as it turned out for those issues to be determined, and they remain for full argument in an appropriate case at a later date.

MARSHALL J:   I agree with what has fallen from Spender J, and the additional observation from Cooper J.  I agree in the order proposed by Spender J.

The Court makes the following orders:

1. the appeal be dismissed;

2. there be no order as to costs, either of the appeal, or of the notice of motion to strike out the appeal.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Cooper and Marshall JJ.

Associate:

Dated:             13/11/98

The Applicant appeared in person
Counsel for the Respondent:	Mr P Bickford
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 November 1998
Date of Judgment:	13 November 1998