Procedure - Application to strike out writ - Workers' Compensation and Rehabilitation Act 1981

Workers' Compensation and Rehabilitation Act 1981

Re Monger; ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96

Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Gardiner & Anor v Ray [1999] WASC 140

Kuligowski v Metrobus [2002] WASCA 170

McNair v Press Offshore Ltd & Anor (1997) 17 WAR 191

Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Re Monger; Ex Parte United Construction Pty Ltd [2002] WASCA 253

Re Monger; Ex Parte Woodford [1999] WASC 273

Robinson & Ors v Adshead & Ors (No 2) (1995) 12 WAR 577

The Legal Practice Board v Said, unreported; SCt of WA; Library No 940608; 31 October 1994

Thomas v Arimco Mining Pty Ltd (2000) 24 SR (WA) 142

Waddington v Silver Chain Nursing Association [1998] WASCA 331; (1998) 20 WAR 269

Young v Holloway [1895] P 87

1 MARTINO DCJ: The defendant applies for an order that the writ of summons be struck out on the basis that it is scandalous, frivolous, vexatious and/or an abuse of process. That application was dismissed by a Registrar and an appeal against that dismissal is now before me. The appeal is of course a rehearing of the defendant's application.

2 By this action the plaintiff claims damages for personal injuries alleged to have been suffered on 4 July 1997 in the course of the plaintiff's employment with the defendant. Therefore Div 2 of Pt IV of the Workers' Compensation and Rehabilitation Act 1981 ("Workers' Compensation Act") applies to the plaintiff's claim. Section 93C of the Workers' Compensation Act provides that if the Division applies a court is not to award damages to a person contrary to the Division.

3 It is clear from the papers that the plaintiff has not made an election of the kind contemplated by the Division, that it has not been agreed that the plaintiff's degree of disability is not less than 30 per cent and that the plaintiff made an application to the Workers' Compensation Directorate for a determination to that effect.

4 It also appears from the papers that that application was dismissed on the basis of the decision of the Full Court of the Supreme Court of Western Australia in Re Monger; ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96. An appeal from that decision of the review officer was dismissed by the compensation Magistrate on 22 July 2003. It is clear therefore that on the legislation as it presently stands, damages could not be awarded to the plaintiff.

5 The plaintiff opposes the application on the basis that the Minister responsible for the Workers' Compensation Act has issued a media statement dated 19 December 2002 in which he has said that there will be amendments to the Workers' Compensation Act to reinstate the rights of some workers denied the opportunity to pursue common law action by the decision in Dutch and on 3 July 2003 the Minister wrote to the plaintiff's solicitors stating:

"The amendments to address the Dutch decision will be retrospective, and provided your client meets the criteria for resubmitting medical evidence it is envisaged he will be able to resubmit the claim following the enactment of the legislation."

6 As the alleged accident or injury was more than six years ago, if this action is struck out then even if those amendments were to be made the plaintiff would be precluded from pursuing his claim.

7 In Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152 the Full Court said at par 31:

"Of course, it would plainly be vexatious to institute proceedings where there was no possibility that it could ever be established that a relevant degree of disability existed, and in an appropriate case such a proceeding might be struck out. Further, it would generally be oppressive to require a defendant to incur expense in defending proceedings where it was not clear whether or not damages could be awarded, and one would usually expect the court to order a stay of proceedings until the provisions of s 93E(3) had been complied with."

8 In this case the plaintiff seeks that his action not be struck out so that if the legislation which has been foreshadowed by the responsible Minister does enable him to proceed with his claim for damages he can do so in this action and thereby avoid being time barred.

9 Having regard to the statements by the responsible Minister to which I have referred, I do not regard the plaintiff's current action as vexatious or an abuse of process. It does not seem to me to be vexatious or an abuse to request time to enable the plaintiff to see whether or not the foreshadowed legislation entitles him to proceed with his claim. Clearly, however, no further costs should be incurred in this action until that issue is clarified.

10 For these reasons I have decided that I should for the time being not grant the defendant's application but order that the action be stayed and to give the parties liberty to apply so that if it becomes clear one way or the other that the plaintiff's action can or cannot proceed the action can either proceed or be dismissed. Further, if the foreshadowed legislation does not come to light at all, it may be appropriate for the defendant to apply for the stay to be lifted and the writ struck out.