Brighton Und Refern Plaster Pty Limited v Boardman

Brighton Und Refern Plaster Pty Limited v Boardman - [2006] HCA 33 - HCA 2006 case summary — Zoe

[8]

This case presents a sorry tale of insufficiently explained delay and requires some consideration of the procedural complexities generated by that delay.
The worker was injured at work on 13 February 2001. He commenced proceedings by ordinary statement of claim filed in the District Court on 19 July 2001 and claimed common law damages in respect of his injuries. The date of filing proceedings was self‑evidently less than six months from the date the injury was suffered, and hence there was a failure to comply with s 151C of the 1987 Act unless (and this was not suggested) one of the conditions specified in sub‑s (2) of that section was satisfied. The employer did not plead to the statement of claim; there is no evidence that the employer participated in any way in the proceedings until 2 August 2002, although it was certainly informed of all steps taken in the proceedings.
The worker's proceedings were listed for review on 16 January 2002 and for a status conference on 13 March 2002. The employer made no appearance on either occasion. Presumably for this reason, the proceedings were listed for a "show cause" hearing on 17 April 2002. At that hearing there again was no appearance for the employer. There was no record before this Court of the precise terms of the order made by Bowden ADCJ on that occasion. However, the effect of the order within the scheme of the Rules was the entry of judgment pursuant to Pt 11 r 1(1) of the Rules[4]. By Pt 11 r 1(2)(a), the employer was deemed to have admitted liability and the matter was to proceed to trial for the assessment of damages pursuant to Pt 11 r 3 and Pt 27 r 1[5]. This order for judgment procedure pursuant to Pt 11 represents the equivalent for unliquidated claims of the procedure for default judgment in respect of liquidated claims[6]. The proceedings were listed on 9 May 2002, for the assessment of damages.
An order for judgment of the kind made by Bowden ADCJ might be set aside pursuant to Pt 11 r 2, either "by order of the Court" or automatically upon the filing of a notice of grounds of defence under Pt 10 r 1(1). The effect of an order for judgment being set aside was to remove any operation from Pt 11 r 1(2), the effect of which has already been described[7]. It is to be noted that no leave requirement originally pertained to the ability of a defendant to file a notice of defence pursuant to Pt 10 r 1(1); the defendant could file that defence "at any time before judgment". However, with effect from 17 April 2003, that rule was amended requiring a defence to be filed within two months after the service of the statement of claim. That amendment bound the employer in this case[8], a matter of significance.
Neither party appeared on the date on which the trial as to the assessment of damages had been listed. The worker's proceedings were dismissed by the Court on its own motion for want of prosecution[9]. Subsequently, the worker applied in accordance with the Rules to set aside that order and for the proceedings to be reinstated[10]. It may be inferred that the employer made no appearance at the hearing of the re‑instatement application, since it first filed an appearance after that date, namely on 2 August 2002. The worker's application was granted on 12 July 2002.
It was on 2 August 2002 that the employer first took any point in relation to s 151C. It did so by filing a notice of motion for summary dismissal of the proceedings for non‑compliance with s 151C. At that stage the employer had not filed a notice of grounds of defence, and hence the orders made by Bowen ADCJ on 17 April 2002 continued in operation. In response, the worker, by notice of motion filed on 25 September 2002, applied for orders granting leave either: (1) to commence the proceedings within six months of the injury; or (2) to continue the proceedings. The basis for the worker's motion was "waiver", but the precise basis within the Rules for the relief sought is unclear[11].
It was not until almost one year later on 17 July 2003 that the employer purported to file a Notice of Grounds of Defence. However, as has been mentioned, the employer's ability to file a defence was constrained by the Rules. Leave was required because more than two months had elapsed after service of the worker's statement of claim[12]. The upshot was that it was impossible for the employer to avail itself of the operation of Pt 11 r 2(1)(b) of the Rules automatically to set aside the order for judgment made by Bowden ADCJ on 17 April 2002. It is to be noted that at no stage did the employer seek leave to set aside the order for judgment or to file its Notice of Grounds of Defence, as was now required were it to avail itself of Pt 11 r 2.

[23]

In the hearing of the motions in the District Court, concessions were made on behalf of each of the parties. The record (and the findings of the primary judge) did not disclose exactly when the appellant had been given notice of the respondent's injury, commencing the running of time for which s 151C(1) provides. However, it was clear that the commencement of the proceedings for damages, having occurred within six months from the date of the injury, had likewise occurred within six months of the notice. The respondent conceded that this was the case. He also conceded that neither the appellant nor its insurer had wholly or partly denied liability for his injuries, so as to engage s 151C(2) of the Act[40].
For its part, the appellant conceded that, in the light of the foregoing history, the respondent "was entitled to a finding that the failure to act by the [appellant] and its insurer amounted to waiver"[41]. No equivalent concession on the part of the employer was made in Gordon. Whilst making this concession, the appellant submitted that it was legally irrelevant. It would only be relevant if non-compliance with s 151C(1) was solely for the interests of the appellant. This was an interpretation that the appellant disputed.
The respondent submitted that non-compliance with s 151C could be, and had been, waived by the appellant. Alternatively, the respondent argued that the appellant, by the course of the proceedings, should be taken to have admitted liability. This was reflected in the order of Bowden DCJ, for default of appearance of the appellant, that the respondent's claim was for hearing as on an assessment of damages. That order, so it was said, precluded the appellant from "relying on a breach of any procedural requirement" in the Act, such as s 151C(1)[42].
The primary judge rejected the submissions for the appellant, contending that the language of s 151C of the Act was such as to forbid waiver by the employer. More relevantly, her Honour rejected the appellant's submission that the statement of claim was "a nullity"[43]. By reference to authority, including a decision of this Court concerning the proper approach to deriving the meaning of contested statutory language[44], the primary judge concluded that the proceedings were not invalid and that a party such as the appellant was entitled, as it chose, not to rely on a failure of the respondent to comply with s 151C(1).
By examination of the history of the proceedings, the date on which her Honour inferred that the appellant had first become aware of the common law claim (23 July 2001), and the repeated failures of the appellant to rely upon the respondent's non-compliance with the sub-section, the primary judge concluded that the appellant had waived such non-compliance. It had done so by the time when, on 17 April 2002, orders were made by Bowden DCJ equivalent to an Order for Judgment in favour of the respondent[45]. Although the proceedings had later been struck out and then restored, the primary judge accepted that the Order for Judgment in favour of the respondent remained in force. This meant that the appellant was "deemed to have admitted liability"[46]. The primary judge concluded that such deemed admission was further evidence of the appellant's waiver of its "right to rely on a breach of sec 151C"[47]. The appellant's belated purported filing of a defence, outside the times permitted by the District Court Rules ("the DCR") and contrary to the order made on 16 January 2002 (and notified soon after) meant that the purported defence "did not operate to set aside the Order for Judgment … and there was no application before me to set aside the Order for Judgment"[48].
In addition to her finding of waiver, the primary judge, in the alternative, accepted the respondent's submission that the appellant had admitted liability. She concluded that such admission "precludes the defendant from relying on a breach of any procedural requirement"[49]. It was on this basis, expressed in the alternative, that Balla DCJ dismissed the appellant's notice of motion; gave leave to the appellant to file an amended defence by 15 March 2004; and stood the proceedings over for further directions on that day.
In this context, the "amended defence" contemplated by the primary judge's orders must have been a defence consistent with her principal finding that the appellant had admitted liability to the respondent and suffered judgment against it on that basis. Reading the orders below, together with the primary judge's reasons for them, makes it clear that any "amended" defence to be filed could not include a defence based on s 151C(1) of the Act. The subsequent proceedings have gone forward on that assumption.

[24]

The appellant sought leave to appeal to the Court of Appeal against the orders of the primary judge. The reasons of the Court of Appeal refusing such leave were given by Giles JA (with whom McColl JA concurred). They are stated briefly, having regard to the then recent decision of the Court of Appeal in Gordon[50], and because the appellant's attempt to appeal required a grant of leave.
Unsurprisingly, having regard to the decision in Gordon, the Court of Appeal rejected the appellant's submission that non-compliance with s 151C of the Act rendered the proceedings a nullity, and could not be waived[51]. It dealt with identified submissions to reject an argument, perhaps formal, that leave should be granted to reconsider the correctness of Gordon. On this basis, Giles JA identified, as the only remaining question, "whether in the present case waiver was properly found by the judge"[52].
In view of the concession in the District Court, by counsel then appearing for the appellant, that the respondent was "entitled to a finding that the failure to act by the defendant and its insurer amounted to waiver"[53], the conclusion of waiver, in fact and in law, was treated in this case as scarcely open to contest. However, in any event, Giles JA observed that it had been available to the primary judge to have regard to the "many opportunities" open to the appellant and its insurer to raise the s 151C question as relevant to a finding that reliance on s 151C should not be allowed, "particularly given the concession"[54]. On this basis, the Court of Appeal concluded that the primary judge's orders disclosed no error. Leave to appeal was accordingly refused.
Special leave was granted by this Court because the correctness of the decision in the present case rested, in part at least, on the correctness of the reasons in Gordon. It was therefore just that the appellant's objection to the holding in that case should be protected whilst it was subject to this Court's examination.

[28]

Other potential questions: Potentially, there were other issues arising out of the conclusions of the primary judge, concerning the interpretation of the effect of the non-appearance of the appellant before the District Court on 17 April 2002; the effect of the orders made by Bowden DCJ on that day; whether those orders amounted to an Order for Judgment under the DCR[55]; and whether any such Order for Judgment survived the later striking out of the proceedings for the non-appearance of both parties before the Court on 9 May 2002, and the reinstatement of such proceedings on 12 July 2002.
Neither the notice of appeal in the Court of Appeal, nor the notice of appeal in this Court, raises any of the last-mentioned issues. Nor do they deal expressly with the alternative argument, accepted by the primary judge, that the appellant had admitted liability to the respondent in such a way as to preclude it from relying on a breach of s 151C(1) of the Act, following the imputed Order for Judgment or the inferred admission of liability.
Defensive contention of preclusion: In this Court, in addition to his arguments based on the law of waiver, the respondent advanced defensive submissions invoking a suggested preclusion of the appellant from relying on s 151C(1) of the Act at the time (17 July 2003) that the appellant first filed a purported defence in which the suggested non-compliance with s 151C(1) was first raised.
The respondent's submissions contended that a ground of preclusion (which might raise issues of estoppel or election, rather than waiver[56]) arose in his case by reason of a supervening change to the Act. That change, the respondent argued, occasioned actual prejudice to him, if the appellant were belatedly allowed to rely on s 151C(1), because of the failure of the appellant, despite repeated opportunities over more than two years, to plead, and rely on, s 151C(1). In that interval the Act was amended by the Workers Compensation Legislation Further Amendment Act 2001 (NSW).
By that amendment, which commenced on 27 November 2001, with retrospective effect upon all common law claims by injured workers that were not filed on or before that date[57], a new and higher threshold to the right of action for damages was introduced. It required proof of an injury resulting in 15% impairment of the whole person. Effectively, this amendment limited the access of workers, entitled to benefits under the Act, to court proceedings for damages in respect of an injury falling within the Act. The new threshold was inserted in terms of s 151H of the Act. The respondent thus contended that, if his proceedings were now dismissed for breach of s 151C(1) he would suffer actual prejudice because that section had not earlier been pleaded by the appellant. Whether dated from the first time that a pleaded defence was proffered or from the first time s 151C(1) of the Act was mentioned (both of which occurred in July 2003), the appellant's belated reliance on the sub-section would mean that any later proceedings, brought by the respondent, would be liable to possible defeat by reason of the intervening provisions of s 151H of the Act. On this basis too, the respondent sought to uphold the correctness of the primary judge's orders.
Essential issue - nullity: In the way in which the notices of appeal to the Court of Appeal and to this Court were drafted, the sole issues raised by the grant of special leave were the two issues stated earlier. The appeals, so expressed, do not present any of the further issues that might otherwise arise.
Basically, the appellant came to this Court to contest the conclusion in Gordon that, despite s 151C(1) of the Act, the proceedings were not invalid and might still result in a judgment for damages in favour of the respondent. In the way this appeal was argued, even the second issue, of waiver, is not presented by the grounds of appeal. Nonetheless, the appellant accepted that it was bound by the concession made by its counsel in the District Court, noted and relied upon in the Court of Appeal, that a relevant waiver by the appellant had occurred[58].
It is in this way that, in the end, this appeal is reduced to the applicability to this case of this Court's decision in Gordon[59].

[29]

For the reasons given in Gordon[60], the proceedings maintained by the respondent in the District Court were not "invalid". They were not "null and void". Neither the language nor the purpose of s 151C(1) of the Act is such as to suggest nullity or voidness of proceedings commenced in contravention of s 151C(1)[61].
It was open to a party such as the appellant, notwithstanding that sub-section, to allow the proceedings to continue despite the breach of s 151C(1). By those provisions, no duty was cast on the District Court to give effect to them where a party had not chosen to raise them. The language of s 151C(1) was not apt to extinguish the respondent's cause of action at common law. The most that it did was to introduce a procedural bar to the prosecution of the cause of action which the appellant could choose not to enforce.
As such, it was necessary for the appellant, if it wished to invoke the requirements of s 151C(1), to plead it in its defence. If it found itself out of time for relying on that sub-section in its defence, it was obliged to secure the leave of the District Court to file a relevant defence out of time. Necessarily, that need, in the absence of nullity or invalidity, engaged the powers and discretions of the primary judge of the District Court who was asked to permit the belated ground of defence. Such powers and discretions had to be exercised according to law and with regard to the relevant considerations. But it was not obligatory for the primary judge to permit the defence to be raised belatedly. Whether that should be done would depend on all the circumstances of the case.
This was not a case where public policy or the protection of the interests of others (including protection of any interests of the state) suggested a conclusion contrary to the foregoing. Nor was this a case where the terms of s 151C(1) of the Act rendered the proceedings illegal, obliging an outcome that would permit the appellant to plead the invalidity of the proceedings on that ground at any time[62].
The result is that, conformably with the decision in Gordon, the central plank of the appellant's submissions must be rejected. In effect, this requires dismissal of the appeal in the terms in which it was pleaded and argued.

[30]

The foregoing conclusion, and the reasoning of this Court in Gordon, indicate why it is unnecessary in this appeal to explore the operation of the law of waiver and, to the extent that it was raised by the respondent's submissions, the issue of estoppel or election on the basis of preclusion.
The conclusion and orders of the primary judge were open to her given the history of the proceedings, the multiple non-appearances of the appellant and the opportunities which the appellant ignored, or overlooked, to plead s 151C(1) of the Act. This was so for reasons analogous to those explained by this Court in Gordon. In these circumstances it is also unnecessary to consider the defensive submission, advanced by the appellant, that an argument of preclusion could not be allowed for reasons of procedural fairness, because those arguments were not raised and explored in evidence below[63].
To the extent that the DCR were relied on by the primary judge to inform her understanding of her powers and their exercise, no error was shown in what she did or in her resulting orders. On the contrary, as Gordon shows, once the jurisdiction and powers of the District Court were invoked, it was obligatory to conform to those Rules. The appellant specifically disclaimed any argument that the applicable DCR were inconsistent with the provisions of s 151C(1) of the Act[64]. No such inconsistency is apparent.
It follows that, having regard to the Court's reasons in Gordon, it is unnecessary, and would be inappropriate, for this Court to explore the requirements of the law of waiver. That law is confusing and imprecise[65]. This appeal is not an occasion where clarification is necessary to reach the Court's orders.
Nor, for similar reasons, is it necessary, or would it be appropriate, to examine whether the law of estoppel is available to the respondent to sustain the orders made in the District Court. Nor is it necessary or appropriate to enter upon the correctness of the alternative way in which the primary judge based her conclusion on her acceptance that the appellant had admitted liability to the respondent by the course of its neglect of the proceedings in the District Court, having regard to the ordinary operation of the DCR. Upon all of these questions, I would venture no opinion. Gordon applies. That requires, in the circumstances, that the appeal against the primary judge's orders must fail.

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