Asplundh Tree Expert (Australia) Pty Ltd v Robertson

Workers Compensation Act 1987 LEGISLATION CITED: Workers Compensation Legislation Amendment Act No 61 of 2001 Workers Compensation Legislation Further Amendment Act No 94 of 2001

Edward Te Tai v Spectrum Employment Services Co-Operative (Armitage DCJ, 30 July 2004) CASES CITED: In re Keystone Knitting Mills' Ltd Trade Mark [1929] 1 Ch 92 Jones v Wrotham Park Estates [1980] AC 74

Asplundh Tree Expert (Australia) Pty Ltd (Claimant) PARTIES: Shane Richard Robertson (Opponent)

L King SC/P Rickard (Claimant) COUNSEL: S G Campbell SC/A Davis (Opponent)

Goldbergs (Claimant) SOLICITORS: Browne Linkenbagh (Opponent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40088/05

SPIGELMAN CJ HANDLEY JA McCOLL JA

13 DECEMBER 2005 ASPLUNDH TREE EXPERT (AUSTRALIA) PTY LTD v SHANE RICHARD ROBERTSON CATCHWORDS

EMPLOYER & EMPLOYEE - 2001 Act curtailed common law rights of workers retrospectively - transitional provisions - existing actions quarantined - effect on action commenced after amendments

STATUTE - transitional provisions - retrospective legislation - existing actions quarantined - effect FACTS

On 26 November 2001 the respondent filed a statement of claim for damages for an injury suffered at work without having complied with s 151C of the Workers Compensation Act. On 27 November 2001, the bill for the Workers Compensation Legislation Further Amendment Act 2001 was introduced into the Parliament. The Act came into force on 6 December, but some provisions were made retrospective to 27 November. On 24 April 2003 the respondent discontinued the proceedings because of the non-compliance with s 151C. On 27 January 2004 he commenced fresh proceedings claiming damages for the same injury. The claimant applied to have the action struck out for non-compliance with procedural requirements in the Workers Compensation Legislation Amendment Act 2001. Clause 9(1) of the Further Amendment Act 2001 provided that an amendment made by Schedule 1 of that Act applied in respect of the recovery of damages after the commencement of the amendment but did not apply in respect of the recovery of damages if proceedings for their recovery were commenced before the commencement of the amendment. The appellant asserted that the amendments applied to the second proceedings because they were within the general rule in cl 9(1). The opponent claimed that the second action fell within the exception in cl 9(1) because the first action was commenced prior to 27 November 2001. The Judge held that the former regime applied and dismissed the motion. The appellant appealed by leave. HELD: An action pending when the amendments commenced did not quarantine the plaintiff's existing rights so as to make them enforceable in another action commenced later. ORDERS (1) Appeal allowed.

(2) Judgment of Hughes DCJ of 14 October 2004 set aside. In lieu thereof order that action No 1 of 2004 in the Lithgow Registry which became action No 1809 of 2004 in the Sydney Registry be struck out.

(3) Order that the respondent pay the appellant's costs of the action in the District Court and of the Notice of Motion.

(4) Pursuant to the condition on which leave to appeal was granted the appellant is to pay the respondent's costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40088/05

SPIGELMAN CJ HANDLEY JA McCOLL JA

13 DECEMBER 2005 ASPLUNDH TREE EXPERT (AUSTRALIA) PTY LTD v SHANE RICHARD ROBERTSON Judgment 1 HANDLEY JA: The opponent was injured at work on 4 June 2001. On 26 November his solicitors filed a statement of claim, No 94 of 2001, in the District Court at Lithgow. On 27 November the Bill for what became the Workers Compensation Legislation Further Amendment Act No 94 of 2001 was introduced into the Parliament. When it was assented to on 6 December Schedule 1.1 and 4[14] to the extent to which the latter inserted clauses 9-11 in Pt 18C of Sch 6 of the Workers Compensation Act 1987 (the 1987 Act) came into force with effect from 9.00am on 27 November. 2 Section 151C of the 1987 Act prevented common law proceedings being commenced until six months after the employer received notice of the injury. This section had not been complied with when action No 94 of 2001 was commenced. On 24 April 2003 the opponent faced with this objection discontinued that action. On 27 January 2004 he commenced fresh proceedings in the District Court at Lithgow, No 1 of 2004, claiming damages for the same injury. 3 The opponent commenced his second action without having complied with threshold requirements imposed by the Workers Compensation Legislation Amendment Act No 61 of 2001 which came into force on 1 January 2002. The claimant applied on this basis to have the action struck out but the motion was dismissed by Hughes DCJ. The appellant appeals by leave of this Court. 4 It is common ground that the question to be decided on this appeal turns on the provisions of cl 9(1) of Pt 18C of Sch 6 of the 1987 Act inserted by Act No 94 of 2001 with effect from 27 November. This provides: "(1) An amendment made by Schedule 1 to the Workers Compensation Legislation Further Amendment Act 2001 applies in respect of the recovery of damages after the commencement of the amendment (and so applies even if the injury concerned was received before the commencement of the amendment) but does not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment." 5 The appellant asserts that the amendments made by Schedule 1 apply because the case is within the general rule in cl 9(1) and not the exception. The opponent claims that because the first action was commenced on 26 November 2001 the second action is within the exception: "... but does not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment." 6 Hughes DCJ held that the former regime applies to the second action because the first action, in the words of cl 9(1), was "commenced … before the commencement of the amendment". 7 Prima facie the general rule in cl 9(1) applies to the second action because the opponent seeks in those proceedings "the recovery of damages after the commencement of the amendment[s]" although the "injury concerned was received before their commencement". Schedule 1 applies on this basis whether "the recovery of damages" refers to the commencement of the proceedings or the judgment. 8 The drafting of the clause is poor and exhibits marks of haste. One of the problems is that the language of the general rule is not consistent with that of the exception. The exception applies if proceedings for the recovery of damages were commenced but the general rule only applies to the recovery of damages. 9 Clause 9(1) must be construed against the background, presumed to be known to the Parliament, that s 151C of the 1987 Act required six months notice to be given to the employer before proceedings could be commenced to recover damages for a worker's injury. The general rule applies to cases where notice had been given but the six months had not expired. The exception in cl 9(1) was not intended to protect accrued rights in general but only the rights of existing litigants and the legitimate expectations they acquired when they commenced proceedings after complying with s 151C. 10 In this case two actions are relevant. The first was commenced before the amendment and the second afterwards. The first was discontinued and damages can never be recovered in it. The second remains on foot and if damages could be recovered in it recovery would be after the commencement of the amendment. 11 The construction contended for by the appellant would be clear if the definite article "the" had been inserted before "proceedings" in the exception so that the general rule did not apply: "in respect of the recovery of damages if the proceedings for their recovery were commenced before the commencement of the amendment." 12 The principles to be applied in determining whether words should be read into an Act are those stated by Lord Diplock in Jones v Wrotham Park Estates [1980] AC 74 at 105-6: "The task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it … First it must be possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that that it was the purpose of the Act to remedy … and thirdly it [must be] possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by the Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a Court of Justice to repair the omission in the Act cannot be justified as an exercise of it's jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation." 13 A construction of the exception which would read in the definite article before "proceedings" accords with these principles. This construction is also aided by the well known general rule that the rights of the parties are determined as at the date proceedings are commenced: In re Keystone Knitting Mills' Ltd Trade Mark [1929] 1 Ch 92 CA, 103, 105, 107. The proceedings referred to in the exception are the proceedings in which the damages may be recovered. Thus the rights of the parties in actions commenced before the commencement of the amendment are to be determined at the date they were commenced and are preserved, but the first action has been discontinued. The rights of the parties in the second action are also to be determined at the date those proceedings were commenced but are within the general rule. 14 The matter is brought into even sharper focus if one considers how cl 9(1) would operate if proceedings had been commenced before the amendments against the wrong defendant. It would be extraordinary if such proceedings preserved the previous law for the benefit of a plaintiff when he sued the correct defendant after the amendments had taken effect. 15 In my judgment the application of these principles to the construction of cl 9 entitles the Court to read in the definite article before proceedings in the exception. In Edward Te Tai v Spectrum Employment Services Co-Operative Armitage DCJ, in a judgment delivered on 30 July 2004 which Hughes DCJ declined to follow, held that an action pending when the amendments commenced did not quarantine the plaintiff's existing rights to as to make them enforceable in another action commenced later. In my respectful opinion his judgment was correct. 16 I therefore propose the following orders:

(2) Judgment of Hughes DCJ of 14 October 2004 set aside. In lieu thereof order that action No 1 of 2004 in the Lithgow Registry which became action No 1809 of 2004 in the Sydney Registry be struck out.

(3) Order that the respondent pay the appellant's costs of the action in the District Court and of the Notice of Motion.

(4) Pursuant to the condition on which leave to appeal was granted the appellant is to pay the respondent's costs of the appeal. 17 SPIGELMAN CJ: I agree. 18 MCCOLL JA: I also agree. 19 SPIGELMAN CJ: The orders are as indicated by Handley JA. **********

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