Zarrinkafsh v State of Victoria

[2011] VCC 6

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No.

ALI ZARRINKAFSH	Plaintiff
v
STATE OF VICTORIA	Firstnamed Defendant
and
VATMI INDUSTRIES PTY LTD	Secondnamed Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2010
DATE OF JUDGMENT:	3 February 2011
CASE MAY BE CITED AS:	Zarrinkafsh v State of Victoria & Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 6

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – ss.5 and 134AB – Corrections Act 1986 – s.110 – plaintiff injured whilst working pursuant to a Community Based Order – whether s.110 of the Corrections Act or Part 9D of the Act as amended applies – whether plaintiff in issuing proceedings obliged to comply with requirements of s.134AB of the Accident Compensation Act – distinction between “deemed” workers with a “deemed” employer and those entitled to compensation “as if” workers pursuant to the Accident Compensation Act – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with	Moores Legal
Ms M Bylhouwer
For the Firstnamed	Mr M Fleming	Thompsons Lawyers
Defendant
For the Secondnamed	No appearance	Moray & Agnew Lawyers
Defendant  HIS HONOUR:

General background

1          This matter comes before me by way of argument concerning what could either be described as a preliminary point or an interlocutory application. Summary dismissal of the plaintiff’s claim is sought by the firstnamed defendant, it having issued a Summons dated 7 October 2010 seeking this. Whether what is before me is treated as an interlocutory application or a preliminary point, should I find in favour of the firstnamed defendant, that would be the end of the matter, at least insofar as it is concerned. I have been assured that the secondnamed defendant was well aware of the hearing on 11 November 2010, and that indeed a representative of its solicitors was seated in the court during at least part of the hearing. However, the secondnamed defendant opted to take no part in the present application, leaving the conduct of it to the firstnamed defendant. In any event, in essence it was agreed that the matter proceed as a preliminary point pursuant to Order 47.04 of the Rules of Civil Procedure.

2 The argument before me is brought in the context of a claim by the plaintiff that he suffered injury to his right eye on 5 August 2003 whilst doing community service work when completing a Community Based Order and was therefore a deemed employee of the firstnamed defendant at the time of injury. The injury was allegedly sustained whilst the plaintiff was carrying out work at the premises of the secondnamed defendant. He has issued a Writ dated 6 July 2009 out of this Court and against both defendants. The matter had been set down for a trial by jury. The crux of the argument before me is whether the plaintiff, being a deemed worker as described above, and bringing legal proceedings for what could be described as common law damages, is subject to the operation of s.134AB of the Accident Compensation Act 1985. If the plaintiff is so subject, it is argued, the proceedings commenced are void, given that they were not commenced in accordance with s.134AB(16) of the Accident Compensation Act.

3          Mr T Tobin SC with Ms M Bylhouwer of counsel appeared on behalf of the plaintiff. Mr M Fleming of counsel appeared on behalf of the firstnamed defendant. No oral evidence was adduced. Counsel made careful, detailed and helpful submissions, the matter proceeding by way of argument with reference to documents.

Factual background

4          The following factual background is set out solely for the purposes of determining the preliminary point. As stated, no oral evidence has been adduced to this point in time, and these Reasons for Judgment are made on the basis of matters related by counsel from the Bar table along with documents to which I was referred. I would add that references to the firstnamed defendant include, in appropriate circumstances, a reference to the Victorian WorkCover Authority (“the Authority”) and its agents.

5 The plaintiff is aged 30 years. On or about 11 March 2003 he commenced work at the premises of the secondnamed defendant, this being pursuant to a Community Based Order. It is alleged that, on 5 August 2003, whilst so working he injured his right eye when using a screwdriver and fixing small springs onto air vents. On 15 August 2003 the plaintiff lodged a claim for weekly payments of compensation and medical and like expenses, together with a claim pursuant to s.98C of the Accident Compensation Act. Liability was accepted and payments made.

6 On 1 July 2009 the plaintiff issued an application pursuant to s.134AB(4) of the Accident Compensation Act alleging serious injury and naming both defendants. The impairment upon which reliance was placed was to the right eye, and paragraph (a) of the definition of “serious injury” found in s.134AB(37) of the Accident Compensation Act was relied upon. Leave in respect of pain and suffering consequences only was sought. A supporting affidavit and, ultimately, a Statement of Claim were also served.

7 On 27 October 2009 the solicitors for the firstnamed defendant wrote to the plaintiff’s solicitors advising that a determination had been made that the plaintiff did not have a whole person impairment of 30 per cent or greater and therefore was not deemed to have a serious injury within the meaning of the Accident Compensation Act; that, as the plaintiff did not have a serious injury within the meaning of the Accident Compensation Act, leave was not granted to him pursuant to s.134AB(16); and that therefore a serious injury certificate was denied. This could be described as a standard letter of denial when the Authority is of the view that the injury or impairment in question is not of sufficient magnitude to reach the statutory threshold. There was no suggestion of any doubt concerning the applicability of the Accident Compensation Act.

8          Subsequently, the plaintiff opted to pursue his claim pursuant to the Wrongs Act 1958. The plaintiff’s solicitors advised the firstnamed defendant’s solicitors of this by way of letter dated 4 December 2009. Such letter also referred to the decision of a judge of this Court in Laengst v Healesville High School Council & Ors (delivered 9 June 1995). On 29 January 2010 the Writ, Statement of Claim and medical reports were served on the defendants. Included was a request that, in essence, given the medical assessments, a waiver of further assessment pursuant to the Wrongs Act should be granted.

9 On 26 February 2010 the solicitors for the firstnamed defendant wrote to the Office of the Victorian Government Solicitor (a copy being supplied to the solicitors for the plaintiff) pointing out that the plaintiff’s claim was not governed by s.134AB of the Accident Compensation Act, the plaintiff not being a worker at common law. However, on 11 August 2010 the solicitors for the firstnamed defendant advised the plaintiff’s solicitors that they were now instructed that s.134AB of the Accident Compensation Act did in fact apply to the plaintiff and that therefore the proceedings commenced by him were void in that they had not been commenced in accordance with s.134AB(16) of the Accident Compensation Act. An Amended Defence filed by the firstnamed defendant effectively pleaded that the plaintiff, who had been advised that he did not have a serious injury and having not subsequently applied to a court for leave in accordance with s.134AB(16)(b), was barred from bringing proceedings for the recovery of damages. His proceeding, it was pleaded, was therefore a nullity and/or void.

10 Thus, the core issue to be determined is whether the plaintiff, in bringing his claim, is bound to comply with the steps set out in s.134AB of the Accident Compensation Act, and, in particular, with the requirement to obtain leave pursuant to sub-s.(16). Of course, the passage of time has produced the result that the plaintiff is now effectively barred from obtaining such leave by reason of sub-s.(16)(b) unless a successful application pursuant to sub-s.(20) is made.

The competing arguments

(a) The submissions on behalf of the firstnamed defendant

11        The submissions of Mr Fleming on behalf of the firstnamed defendant could be summarised as follows.

12 The dispute is whether the proceeding is governed by s.134AB of the Accident Compensation Act. The plaintiff alleged in his Statement of Claim that at all relevant times he was a deemed worker employed by the firstnamed defendant, and the firstnamed defendant admitted this in its Defence. The pleading of the Statement of Claim has the form of one relating to an industrial accident, particularly in regard to allegations such as those of breach of duty.

13 The plaintiff’s proceeding is governed by s.110 of the Corrections Act 1986. It reads as follows:

“A person who is –

(a)	an offender who is required or directed by or under a correctional order, a provision of the Sentencing Act 1991, or Part 9 of this Act to work or to take part in a program of activities; or
(b)	a volunteer who is working in a prison or at a location; or
(c)	a person who is required or directed by or under a diversion program under section 128A of the Magistrates’ Court Act 1989 to work or to take part in a program of activities –

is deemed for the purposes of the Accident Compensation Act
1985, to be a worker employed by the Crown.”

14 Section 110 as set out above has since been repealed, but it nevertheless governs this proceeding, bearing in mind the dates involved, including that of the making of the serious injury application on 1 July 2009. The common law proceeding before the court is dated 6 July 2009. The commencement date of the new Part 9D of the Corrections Act is 30 October 2009. Accordingly the proceeding is governed by s.110 of the Corrections Act as it stood prior to amendment. Therefore it is clear that, in the present case, compensation was paid pursuant to the provisions of the Accident Compensation Act rather than the Corrections Act. Under s.110 prior to its repeal, an injured person such as the present plaintiff was made a worker under the Accident Compensation Act rather than not being a worker pursuant to it but, effectively, paid compensation in accordance with it – that is, as though such person was such a worker without actually being made one.

15 Reference is also made to the Second Reading Speech when the 2009 amendments were introduced. It was said therein that offenders injured whilst undertaking tasks or programs under the Corrections Act were “…still entitled to compensation in accordance with the Accident Compensation Act 1985 but no longer considered to be employees of the Crown for this purpose.” It was further said that the new scheme aligned more closely with the provisions of other Acts for dealing with injury compensation for volunteers and the like in other government agencies.

16        Other schemes of like nature and the scheme introduced by the amendments are distinguishable in that they do not make the injured person an employee of the Crown. There is a clear distinction between a person receiving compensation because such person is deemed to be a worker employed by an entity and a person receiving compensation under an act as if the person is a worker.

17 In the present case, s.134AB of the Accident Compensation Act applied and the plaintiff was required to have obtained a serious injury determination in order to bring common law proceedings. No steps were taken to obtain leave to commence proceedings pursuant to s.134AB(16)(b). Accordingly, the consequence of this is that the present common law proceeding is a nullity – see State of Victoria v Robertson (2000) 1 VR 465. Reference is also made to Kidman v Sefa [1996] 1 VR 86.

18 Further, in the present case the plaintiff is a deemed worker by reason of s.110 of the Corrections Act 1986. He is a person entitled to compensation for the purposes of s.134AB(1) of the Accident Compensation Act and has in fact received such compensation. The injury for which compensation was paid arose out of deemed employment by the Crown. On the face of it, if s.110 of the Corrections Act 1986 applies, the requirements of s.134AB(1) are satisfied and proceedings can only be brought in accordance with the requirements of s.134AB. The required procedure was commenced, but was rejected, and no further steps were taken. No application has been made for leave to apply to the court out of time pursuant to s.134AB(20) of the Accident Compensation Act, although this would seem to be a situation where the failure to comply with the timing contained in sub-s.(16)(b) was not due to any fault or omission of the plaintiff or his legal representatives. These are complex provisions, and the views of the parties have changed completely as the matter proceeded. The plaintiff originally believed that the provisions of the Accident Compensation Act which did apply now do not, whereas the firstnamed defendant has moved in exactly the opposite direction.

19        In relation to the decision in Laengst, which was apparently delivered by His Honour Judge Wodak, the plaintiff was injured when a volunteer school worker. The relevant provision in relation to compensation was s.34(2A) of the Education Act 1958. That section reads:

“The compensation shall, in respect of personal injury suffered…be paid in accordance with and subject to [the Accident Compensation] Act as if within the meaning of that Act at the time the person so suffered the personal injury –

(a)	the person was a worker employed by the Crown; and
(b)	the person suffered the personal injury arising out of or in the course of employment with the Crown.”

20 Emphasis is placed upon the words “as if”. This stands in contrast to the deeming of employment under the Accident Compensation Act. A similar approach is adopted in the new scheme contained in Part 9D of the Corrections Act as amended.

21        In Laengst the concession was made that compensation was paid pursuant to s.34 of the Education Act. His Honour Judge Wodak found that such concession meant that compensation payments had been made only pursuant to the Education Act and not pursuant to the Accident Compensation Act. His Honour further stated that there was a deeming of employment pursuant to s.34(2A) of the Education Act, but for a limited purpose only – namely to enable the provisions of the Accident Compensation Act to be used with respect to the payment of compensation to voluntary school workers. His Honour stated that there was nothing in the provisions which made a volunteer under the Education Act a worker within the meaning of s.5 of the Accident Compensation Act. His Honour found that the plaintiff was not a worker nor entitled to compensation within the meaning of and for the purposes of the Accident Compensation Act. Further, his Honour noted that he could find nothing in the Education Act in relation to the curtailment of common law rights in relation to volunteer school workers. Thus, his Honour found that the plaintiff was not a worker within the meaning of the Accident Compensation Act and was not entitled to compensation under that Act.

22        The decision in Laengst is distinguishable from the present case because it was made in relation to a distinguishable statutory scheme for the compensation of volunteers. The provisions do not have the effect of rendering a volunteer a deemed employee of the Crown. Under such schemes a volunteer obtains compensation “as if” the volunteer or worker is employed by the Crown, and not because the volunteer is deemed to be a worker employed by the Crown. The only function of s.110 of the Corrections Act was to deem a volunteer or offender to be a worker within the meaning of the Act and employed by the Crown. Once it is understood that this is the only function of s.110, everything else is done pursuant to the Accident Compensation Act. If persons are brought within the provisions of the Accident Compensation Act in the sense of having it conferred upon them, it is no surprise that not only do such persons have the right to compensation pursuant to the Act but they are also subject to the restrictions which exist in relation to common law rights. The common law consequence of being made an employee and subject to the Act is that the requirements of the Act must be met in relation to common law proceedings.

23 If the distinction in relation to schemes referred to above is not a real one, the relevant statutory amendments to s.110 by virtue of its replacement by Part 9D would be pointless.

24        If, as argued, the Act does apply in the present circumstances, the proceeding has not been commenced in conformity with it.

(b) The submissions on behalf of the plaintiff

25 The firstnamed defendant has effectively conceded that s.134AB of the Accident Compensation Act would not apply to volunteer workers or offenders injured after the introduction of the new Part 9D of the Corrections Act. When the Bill amending the Corrections Act was read for the second time, the Treasurer said as follows:

“This amendment aligns closely with the provisions of other Acts dealing with injury compensation for volunteers and non-workers and other government agencies and replaces s.110 of the Corrections Act without reducing or increasing rights and eligibility to compensation.”

26 The provisions of the Corrections Act relate only to compensation and not to damages. The bar put in place by s.134AB does not arise from the Corrections Act.

27 It was submitted on behalf of the firstnamed defendant that those accepting statutory benefits under the Accident Compensation Act must, as a type of trade-off, face the restrictions which exist in relation to common law rights. However, persons such as the plaintiff working pursuant to a corrections order have no choice as to which regime applies. In those circumstances, any provision must be strictly considered before it is found that it takes away some other entitlement.

28 The plaintiff’s claim for compensation by way of statutory benefits was one that was confined to that and was determined prior to the amending of the Corrections Act. The Explanatory Memorandum contained in the Justice Legislation Further Amendment Act 2009 (being the act which introduced the amendment under consideration) reads in part as follows:

“New Part 9D enables defined volunteers and offenders injured undertaking tasks or programs assigned by the Department to be managed and compensated in a consistent fashion to similar non- workers. However it provides these injured persons will no longer be treated as employees of the Department for accident compensation purposes. This amendment does not change the rights or entitlements of volunteers or offenders when injured.”

29 The transitional provision is s.118 of the Corrections Act. It reads:

“Part 9D does not apply to a claim by a person referred to in section 110 (as in force immediately before its repeal) under the Accident Compensation Act 1985 that was made but not finalised before the commencement of s.4 of the Justice Legislation Further Amendment Act 2009. Section 110 (as in force before its repeal) continues to apply to that claim.”

30 A question then arises as to when that claim was made and finalised. In the present case a claim for statutory benefits, including the claim for impairment, was made by the plaintiff and payments were made. Precise wording is needed in order to take away rights. On one reading of it, Part 9D may apply in relation to s.134AB. This is a secondary argument.

31 The principal submission on behalf of the plaintiff is as follows. Section 134AB is one within the Accident Compensation Act which does not deal with compensation. It is a section dealing with damages. As was pointed out in Laengst, if important rights such as the right to damages are to be taken away, the language used must be precise. There is nothing indicating such an intent in the legislation. Accordingly, the Court should be very hesitant to take away such rights.

32 Further, the plaintiff in the present case does not have a right to compensation pursuant to the Accident Compensation Act. There is a right to compensation paid in accordance with the Accident Compensation Act pursuant to the Corrections Act. A worker seeking compensation pursuant to the Accident Compensation Act must establish that he is indeed a worker pursuant to the provisions of that Act. He must establish that he is, in essence, a worker within the meaning of the common law or a deemed worker in accordance with ss.(6)-(16) of the Accident Compensation Act. Those sections deal with people such as share farmers, jockeys and others. The present plaintiff does not have an entitlement under the Accident Compensation Act. His entitlement is under the Corrections Act. His entitlement to compensation is subject to, and in accordance with, the provisions of the Accident Compensation Act but not by reason of them. That is so regardless of whether one is looking at the pre-amendment scheme or the current scheme. Under the former scheme, if a person such as the plaintiff came before a court seeking compensation pursuant to the Accident Compensation Act, and without any reference to or reliance upon the Corrections Act, such person could not succeed. If the present plaintiff came before a court seeking entitlements under the Accident Compensation Act for his injury, he would be told that he was not so entitled because he was not a worker within the meaning of that Act. His entitlement only arises because the Corrections Act gives it to him. His entitlement to compensation comes through the Corrections Act and not through the Accident Compensation Act.

33 Where the Accident Compensation Act is to extend to common law entitlements, it does so specifically.

34 The purpose of the amendment of s.110 of the Corrections Act and the alteration of the wording from “deemed to be an employee of the Crown” is to be understood in the context of the Second Reading Speech. The necessity for the amendment related to the payment of premiums. In fact, for some reason there appear to have been two Second Reading Speeches by different Ministers, and each makes it clear that the change by way of amendment will not affect existing entitlements of offenders and volunteers to compensation. The changing of the wording is merely to effect a change as to who makes the payment of premium.

35 If the Crown is the deemed employer within the meaning of the Corrections Act and a right to compensation is provided without it being expressly stated within that Act that there will be a reduction in common law entitlements, the court should not do that by applying s.134AB of the Accident Compensation Act. The plaintiff is not a common law worker. He is not a worker within the meaning of the Accident Compensation Act. He only becomes a worker for the purposes of the Accident Compensation Act pursuant to the Corrections Act. The plaintiff’s entitlement is under the Corrections Act invoking the Accident Compensation Act.

36        There is nothing in the legislation or in the Second Reading Speeches that shows any intent to restrict the common law entitlements of workers such as the plaintiff, and, if there is going to be any such restriction, it must be expressly stated. Reference is also made to the decision of Judd J in Owens v University of Melbourne & Anor [2008] VSC 174 where it was held that s.134AB did not apply to an action brought under the Whistleblowers Protection Act 2001.

37 In answer to a question of mine, Mr Tobin stated that he was not aware of any other comparable scheme in which the relevant legislation “deemed” a volunteer or the like to be a worker or employee in the manner in which it was done in s.110 of the Corrections Act. However, he did point out that, in the original version of s.110 of that Act, the wording was that the “relevant persons were, for the purposes of the Accident Compensation Act, to be regarded as workers employed by the Crown”. The alteration to “deemed” was introduced by way of amendment in 1994. (Thus, the wording described by Mr Fleming as important has altered over the years.) At the time of the 1994 changes, a number of Acts were amended without there being any explanation as to why particular language was used. However, what could be said is that, at the time of those amendments, no changes were made to the Accident Compensation Act to bring those subject to the Corrections Act under the umbrella of the Accident Compensation Act. The entitlements of such persons remained via the Corrections Act. If it was intended that the persons in question be made subject to the operation of the Accident Compensation Act, a further section, similar to ss.(6)-(16), could easily have been added to that Act.

38 I also asked Mr Tobin to re-visit what he described as his subsidiary argument, as I had some difficulty in understanding it when it was first presented. It was then further submitted that, by reason of the transitional provision, the new Part 9D does not apply to a claim that had been made but not finalised. In the present case the plaintiff made a claim for compensation pursuant to the Accident Compensation Act and payment, including that for an impairment benefit, was made before the relevant amendment received the royal assent. Thus, the plaintiff’s claim had been finalised. The “claim” referred to is for statutory benefits. Section 134AB is not about compensation, but about damages. If the plaintiff had never made a claim for compensation, he would have no difficulty bringing this proceeding under s.134AB because the transitional provision would apply. It is only when there is a pending claim that finalisation has not occurred and the old s.110 applies. Here, the statutory benefits, including the impairment benefit, have been paid and the claim is finalised. In accordance with the logic in Laengst, there is no bar pursuant to s.134AB to the bringing of common law proceedings. The new Part 9D applies if a claim has not been made or if a claim has been made and finalised. If a claim has been made but not finalised, it is only then that the old s.110 continues to apply.

39 However, it was repeated by Mr Tobin that this was a secondary argument and that the principal argument was that the plaintiff is not a person who has received compensation pursuant to the Accident Compensation Act, but has received compensation under the Corrections Act invoking the Accident Compensation Act. It was also repeated that nowhere is there any express provision that persons are to have their common law rights taken away from them.

(c) The reply on behalf of the firstnamed defendant

40        Mr Fleming’s reply on behalf of the firstnamed defendant could be summarised as follows.

41 The transitional provision is difficult. It refers to a “claim” by a person referred to in s.110 of the Corrections Act, but that word, “claim”, does not appear in s.110. The use of the word “claim” in that context is equally consistent with it being a claim for compensation or a claim for damages. If it is a claim for damages, the Statement of Claim has been issued before the coming into operation of the amending Act and has not been finalised. However, if the word “claim” is confined to the narrower meaning of a claim for statutory compensation, despite the fact that benefits have been paid, the claim is not finalised. The Statement of Claim specifically makes no claim for hospital, medical and like expenses, the reason for that being that such is unnecessary because of the Accident Compensation Act. Medical and like expenses remain able to be claimed. The use of the word “finalised” is thus also unsatisfactory. If the submission on behalf of the plaintiff in relation to the transitional provision is correct, a strange conundrum would result. The Writ would have been issued in disconformity with s.134AB because of the operation of s.110 as it was prior to amendment, but, when the transitional provision became effective and the new Part 9D applied, the void proceeding would become valid again. This is a very improbable state of affairs.

(d) A further submission on behalf of the plaintiff

42        Reference is made to the Country Fire Authority Act 1958. It refers to compensation being payable if the casual fire-fighter or volunteer were a worker within the meaning of the Accident Compensation Act. It was drawn to the attention of the Court simply as another example of the differing types of wording used.

Ruling
43	The arguments in relation to this preliminary point raise a number of difficult and intriguing questions, not the least of them being, yet again, the manner in which a transitional provision is meant to operate.
44	I shall now deal with some of the questions raised by this difficult case.
(a) Does s.110 of the Corrections Act in its pre-amendment form apply or does Part 9D of the amended Act have application?
45	The first question to be determined is as to which statutory provision applies – s.100 of the Corrections Act as it was prior to amendment or Part 9D which became operational as at 30 October 2009. In order to answer that question, I must look at the transitional provision, namely s.118. That provision was described by Mr Fleming as “another doozy”, and, if he meant by that it is somewhat appallingly drafted, I do not disagree with him.
46	Section 118 commences by stating that ─ “Part 9D does not apply to a
claim…”. The word “claim” or, for that matter, the word “claimant”, does not appear in s.110. As far as I can find there is nothing in the original Act, the amending Act or the Accident Compensation Act that gives assistance as to its meaning, and counsel did not suggest anything to the contrary. As was argued, “claim” could mean any of a number of things. It could mean a claim for weekly payments, or medical or like expenses, or an impairment assessment. It could include a claim for damages. It is not clear, for example, whether a letter of demand could constitute a claim or whether certain procedural steps need to have been taken.
47	The next difficulty is that Part 9D does not apply to a claim by a person referred to in s.110 under the Accident Compensation Act 1985 that was made “but not finalised” before the commencement of the amending provision. The term “finalised” is not one which gets any, or any great, usage in the Accident Compensation Act. “Finalised” could perhaps, arguably, mean “paid”, as was in essence argued by Mr Tobin. It could mean brought to an end by an unchallenged Notice of Termination of statutory benefits. It could mean ended by reason of an unchallenged rejection of a serious injury application or by a Court Order constituting a res judicata. Arguments could arise as to whether a “claim” is “finalised” by reason of a withdrawal of such a “claim” before there has been a determination on the merits. Thus, the terminology involved in s.118 is certainly far from ideal.
48	In my opinion, and doing the best I can with the transitional provision, in the present case a claim was made by the plaintiff but not finalised before the commencement of s.4 of the Justice Legislation Further Amendment Act 2009, and therefore s.110 of the Corrections Act as in force before its repeal continues to apply to the claim. In West Wake Price & Co v Ching [1956] 3 All E.R. 821, Devlin J stated as follows:

“I think that the primary meaning of the word ‘claim’ – whether used in a popular sense or in a strict legal sense – is such as to attach it to the object that is claimed; and is not the same thing as the cause of action by which the claim may be supported or as the grounds on which it may be based”.

It seems to me that in the present case the plaintiff made three claims. He claimed weekly payments of compensation and the payment of medical and like expenses, this claim being by means of a WorkCover Worker’s Claim Form signed by him on 15 August 2003. This claim was accepted. Secondly, I accept that he made a claim pursuant to s.98C of the Accident Compensation Act for permanent impairment. I presume that this was initiated by the appropriate form, and I accept that payment was received after the assessment process. The plaintiff also made a claim for damages, this claim being initiated by the Writ and Statement of Claim. All three claims were made prior to the amendment of the section. It would seem that payment in respect of the s.98C claim was made prior to the date of the repeal of s.110.

49 Of the three claims, it seems to me that only that made in relation to s.98C could be described as “finalised”. I am assuming that payment was made and accepted prior to the relevant date, and that no further step has been, or indeed could now be, taken. The claim for weekly payments of compensation and payment of medical and like expenses does not seem to me to have been finalised. The fact that some payments have been made is not the end of the matter. It has not been suggested to me that any Notice of Termination of benefits has been served. It may be that the plaintiff has not claimed any benefits for a considerable period. However, it seems to me that at least his claim for medical and like expenses is still alive. If he required some further treatment related to the original accident and injury, and there was no dispute concerning this, he would be entitled to receive payment of the cost of such treatment. I was not told of any step that has been taken by any person or entity to terminate the plaintiff’s entitlement to statutory benefits, and particularly to the payment of medical and like expenses, whether such step be taken by way of notice, part of some overall settlement, or by any other means. If that be so, the claim has not been finalised.

50 The plaintiff’s claim for damages, which commenced by means of a Writ and Statement of Claim issued out of this Court on 6 July 2009, has also not been finalised. Even if it were argued that it has in some way been finalised in the form in which it was issued by reason of the effluxion of time and the failure to comply with the time limit contained in s.134AB(16)(b), that is not necessarily the end of the matter. Section 134AB(20) provides a “safety net”. The plaintiff can still apply to the Victorian WorkCover Authority in relation to the failure to comply with sub-s.(16)(b) in circumstances where such failure is not due to any fault or omission of the plaintiff or his legal representative. In such circumstances, the Victorian WorkCover Authority may consent to the bringing of an application pursuant to sub-s.(16)(b). No such application – and one may have thought that, as described by Mr Fleming, it would have at least arguable prospects of success in the present case – has been made. Section 134AB(20) contains no time limit. All of this leaves to one side any argument that, in general terms, the claim for damages is at least still on foot until such time that a determination is made to the contrary.

51 In my opinion, from whichever angle one examines it, the claim of the plaintiff was not finalised prior to 30 October 2009. Therefore, s.110 of the Corrections Act operates in relation to it.

(b) Given that s.110 of the Corrections Act as it was prior to its repeal operates, what significance attaches to the wording used in that provision as compared with the wording used in the new Part 9D and in other similar legislative schemes?

52 As I understand it, and as was effectively submitted by counsel, the wording employed in s.110 of the Corrections Act is not to be found elsewhere. I would refer back to paragraph 13 of this Judgment in which s.110 is set out. In particular, I would refer to the last two lines of that section. It will be seen that the wording of s.110 results in two things being deemed for the purposes of the Accident Compensation Act. The person involved is deemed to be a worker. The person involved is deemed to be employed by the Crown. The word “deemed” is one which appears in various pieces of legislation and has been discussed in a number of cases.

53        A particularly helpful and succinct statement in relation to the meaning of the word “deemed” can be found in the Judgment of Ashley JA in DSJ Pty Ltd v Victorian WorkCover Authority [2008] VSCA 42. His Honour discussed the various sections of the Workers Accident Compensation Act 1958 in which deeming provisions could be found, and then gave some indication as to the manner in which “deeming” should be approached. His Honour stated as follows:

“…in each instance the provisions intended to bring within the umbrella of protection given by the Act a person who, being injured, would not or might not otherwise be within that umbrella.”

54 This wording stands in contrast to that employed in the Corrections Act prior to 1994 when the relevant wording was “regarded as”. It is in contrast to the wording used in the new s.104ZR in Part 9D which is as follows:

“Compensation for personal injury (including death) has to be paid in accordance with and subject to the Accident Compensation Act 1985 to those persons to whom, or for whose benefit, compensation would be payable under that Act if –

(a)	the injured person were a worker employed by the Crown; and
(b)	the personal injury had arisen out of or in the course of the employment –

within the meaning of that Act.”

55 In other words, the new wording is in the nature of an “as if” provision, which, as intended, aligns the Corrections Act more closely with other comparable legislation such as the Education and Training Reform Act 2006.

56 That difference in wording seems to me to be significant. Pursuant to the “as if” type of provision, the injured person is not “deemed” (not placed under the umbrella of protection of the Accident Compensation Act) a worker within the meaning of the Accident Compensation Act and to have a specified employer. Rather, the person remains exactly what he or she in fact is, whether that be a volunteer, an offender or some other kind of “non-worker” – that is, someone who is not within the umbrella of protection given by the Act. However, if injury is suffered by that “non-worker”, compensation is payable “as if” such a person was an employed worker. In other words, such person remains a volunteer or the like pursuant to the legislation in question, but a method of payment of compensation operating under another Act (the Accident Compensation Act) applies.

57 Pursuant to the wording employed in the Corrections Act between 1994 and 30 October 2009, the situation is different. The injured person is placed within the umbrella of protection provided under the Accident Compensation Act. Wherever the word “worker” appears in the Accident Compensation Act, that applies to such person.

58 Section 134AB(1) commences:

“A worker who is … entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment …”

59 What follows is, of course, the regime or code which applies in relation to actions for damages. By reason of the deeming provision – that is, s.110 of the Corrections Act – the plaintiff is such a “worker” and is not only placed within the umbrella of protection given by the Act, but also falls within the operation of s.134AB.

60 Examples of “deeming” and the use of what could be described as a statutory fiction by means of which a person is, in essence, made something which he or she would not otherwise be are certainly not unknown in the law. Indeed, and as pointed out during submissions, various of the sections between ss.6 and 16 of the Accident Compensation Act creates such situations and persons who would not otherwise fall within the definition of “worker” as contained in the Act are, in a sense artificially, placed in that category.

61 One may ask the question as to why, when the legislature opted to adopt a deeming provision when s.110 of the Corrections Act was amended in 1994, an appropriate section similar to those found between ss.6-16 of the Accident Compensation Act was not inserted in that latter Act. Adopting such an approach would have left little room for argument. However, it was not done and the answer to the question posed above apparently remains a mystery. I would point out that, for example, the wording of s.6 of the Accident Compensation Act which deals with timber contractors uses the wording that the contractor “shall for the purposes of this Act be deemed to be working under a contract of service with an employer”, and a deemed employer is also established. Again, in s.16(4), jockeys and track riders “shall be deemed for the purposes only of this Act” to be workers, and they are deemed to be employed by Racing Victoria. The wording of s.110 of the Corrections Act, whilst not identical to either of the above, is similar – namely, the relevant person “is deemed for the purposes of the Accident Compensation Act 1985 to be a worker” and a deemed employer, namely the Crown, is created just as Racing Victoria is, artificially, made the employer of jockeys.

62 True it is that the definition of “worker” contained in s.5 of the Accident Compensation Act does not include a reference to persons deemed under other Acts who are deemed to be workers. However, this does not seem to me in some way to overcome the comparatively clear wording of s.110 of the Corrections Act. Each relevant person is to be placed under the umbrella of protection of the Accident Compensation Act and each is a “worker” within the meaning of that Act wherever the word “worker” appears. The fact that there is no reference to such persons in the definition of “worker” in s.5 of the Accident Compensation Act does not seem to me to overcome or alter the meaning of the wording of s.110 of the Corrections Act.

63 If that be so, the deeming effect of s.110 of the Corrections Act makes the plaintiff a “worker” for the purposes of s.134AB of the Accident Compensation Act, and he is required to comply with the statutory requirements contained therein. That means that his application has not been commenced in conformity with s.134AB(16)(b) of the Accident Compensation Act.

(c) What is the relevance or effect of the decision in Laengst?

64        In my opinion the submissions of Mr Fleming in relation to the decision in Laengst are correct. The decision in Laengst seems to me to be distinguishable. Section 34(2A) of the Education Act provides that the relevant person shall be paid compensation:

“…as if within the meaning of that Act (the Accident Compensation

Act) at the time the person so suffered personal injury –

(a)	the person was a worker employed by the Crown; and
(b)	the person suffered the personal injury arising out of or in the course of employment with the Crown”. (My underlining)

65        In other words, in Laengst his Honour was dealing with legislation that was worded in terms of “as if” rather than considering a deeming provision. Mr Fleming quite properly conceded that, particularly in the circumstances of the present case, the decision in Laengst could not be challenged as being clearly wrong. In accordance with the principle of comity, it could not be described as a decision which should not be followed by a judge of the same jurisdiction. As argued by Mr Fleming, if it were s.9D of the Education Act which was being considered, his Honour’s decision in Laengst, and bearing in mind the principle of comity, could well be relevant and applicable. However, given the significantly different wording of s.110 of the Corrections Act, it seems to me that the decision in Laengst can and should be distinguished, and is of limited assistance. I agree that, in Laengst, his Honour was dealing with legislation involving an “as if” provision rather than a deeming provision. It seems to me that this distinction is a vital one.

66        Accordingly, in no way do I dispute the correctness of the decision in Laengst. However, the key difference in the wording of the relevant provisions seems to me to make it distinguishable and to limit greatly its impact upon the situation with which I must deal.

Conclusion

67 I am of the opinion that the submissions advanced on behalf of the firstnamed defendant are correct. The requirements of s.134AB of the Accident Compensation Act apply, and accordingly the issuing of the present proceeding has not been in accordance with the requirements of s.134AB(16)(b). That this proceeding had not been commenced in conformity with the requirements of s.134AB was not challenged in the event that I found that such requirements were applicable.

68 Doubtless it is of scant consolation to the plaintiff, but I am of the view that he has been extremely unlucky to fall victim to the vagaries of these particular pieces of legislation and at the time that the relevant steps in his litigation occurred. As has been pointed out, the applicable wording of s.110 of the Corrections Act is peculiar, if not unique. The transitional provision is, to put it mildly, difficult. The fortuitous timing of things, including the date of commencing this litigation and the date of amendment of the Corrections Act, could scarcely have been worse for the plaintiff. That enormous uncertainty and difficulty surround the operation of the two principal pieces of legislation in this regard is readily apparent. This is clear not only from the submissions of counsel and the headaches associated with the delivery of this particular Judgment, but also from the fact that those advising the plaintiff and the firstnamed defendant have effectively swapped positions during the conduct of the litigation.

69 Clearly it is not up to me to advise the plaintiff or to comment upon the possible success of an application pursuant to s.134AB(20) of the Accident Compensation Act. Nor do I seek to place pressure upon or give any advice to the firstnamed defendant in that regard. However, I would refer to the observations of Mr Fleming, counsel for the firstnamed defendant, in this regard.

70 In summary, I determine as a preliminary point that this proceeding was required to be commenced in accordance with s.134AB of the Accident Compensation Act, in particular in accordance with s.134AB(16) of that Act, and has not been so commenced.

71        I shall hear the parties as to the orders that are required.