Dolling v National Australia Bank [2002] VSCA 127

5. On 25 October 2000 the defendant filed a summons seeking, inter alia, an order that the proceeding be struck out as disclosing no cause of action. The defendant alleged that the proceeding was incompetent because the plaintiff had not complied with the requirements of s.135A(2DE) of the Accident Compensation Act 1985 ("the Act"), a provision which was introduced by amendment by the Accident Compensation (Miscellaneous Amendment) Act 1997[1] ("the amending Act") with effect as from 12 November 1997[2]. The plaintiff made answer that before 12 November 1997 he had complied with the provisions of s.135A of the Act as it stood before amendment, and on that basis he was entitled, he said, to bring the proceeding as he had.

8. On 20 November 2000 a County Court judge rejected the plaintiff's argument, holding that s.135A(2DE) did operate to prohibit the commencement of the proceeding unless the requirements of that sub-section had been satisfied before the writ was issued. It was common ground that the plaintiff had not complied with s.135A as amended and so the proceeding was struck out as incompetent.

11. The plaintiff now appeals by leave, seeking to have that decision reversed.

15. Section 135A is the section which regulates and to a great extent limits the recovery of damages at common law for injury arising out of or in the course of, or due to the nature of, employment. It has undergone many changes since its enactment in 1985. Sub-section (1) contained the general proscriptive provisions and, immediately before amendment towards the end of 1997, the sub-sections that followed commenced thus, so far as presently relevant:

"(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment - (a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; ... (2A) Subject to sub-section (2D), a worker may not bring proceedings in accordance with this section unless a determination of the degree of impairment of the worker has been made under sub-section (3). (2B) Subject to sub-section (2C), the Authority, authorised insurer or self-insurer must make a determination under sub-section (3) within 60 days of receiving a written application for a determination from the worker. (2C) Despite sub-section (2B), if the application is received during the first 104 weeks after the injury, the Authority, authorised insurer or self-insurer may refuse to make a determination if the Authority, authorised insurer or self-insurer is not satisfied that the worker's injury has stabilised. (2D) If the Authority, authorised insurer or self-insurer has not within 60 days of receiving the application advised the worker in writing - (a) of the determination; or (b) of the refusal to make a determination under sub-section (2C) - the worker is entitled to bring proceedings in accordance with this section and to have the question of whether or not the injury in respect of which the worker is seeking to receive damages is a serious injury determined in the proceedings."

Sub-sections (3) and (4) then provided for what should happen if the Authority, authorised insurer or self-insurer, responding within time, determined the degree of impairment. If the degree of impairment was determined as 30% or more, the injury was deemed to be a serious injury within the meaning of the section; if determined as less than 30% then, according to sub-s.(4), the applicant was not entitled to bring proceedings for the recovery of damages without a certificate from the Authority, authorised insurer or self-insurer or the leave of the court, and such certificate or such leave depended upon satisfaction that the injury was a "serious injury". For the purposes of s.135A "serious injury" was defined by sub-s.(19).

20. The plaintiff's case in the County Court depended directly upon sub-s.(2D) as set out above. On 26 August 1997, and thus less than 8 months after the end of the employment relied upon in the proceeding, the plaintiff applied under s.135A for an impairment assessment with a view to the institution of common law proceedings. He received no response to that application, within 60 days or at all. Accordingly, he contended, by virtue of s.135(2D) he was "entitled to bring proceedings in accordance with [s.135A]" and also "to have the question [of serious injury] determined in the proceedings" - and thus far that seems right. Wanting any response within 60 days to the application for an impairment assessment, the plaintiff became "entitled", and so gained the right by statute, to institute the proceeding which was subsequently commenced in December 1999. The 60 days expired on 25 October 1997 and so, on the face of it at least, the right to bring that proceeding vested in the plaintiff on and from 26 October 1997. On that date the plaintiff acquired the right not merely to bring a proceeding, but to do so without the need for any further preliminary step under s.135A, and as well to have the question of serious injury determined within that proceeding.

24. For its part, the defendant relied upon non-compliance by the plaintiff with s.135A of the Act as it stood after amendment in 1997. Section 47 of the amending Act made a number of significant changes to s.135A. Firstly, sub-s.(1) which, as I have said, operated to limit the right to recover damages for injury, was limited to injury arising out of or in the course of or due to the nature of employment before 12 November 1997. Secondly, sub-s.(2B) was amended by extending the time within which a determination was required, from 60 days to 120 days. A number of further sub-sections were then introduced. The first, sub-s.(2BA), regulated the form of the application and required that it be accompanied by medical reports and other supporting material. A new sub-s.(2BB) extended the period of 120 days if the worker did not cooperate by submitting to medical examination as required. Sub-section (2C) (which allowed that the Authority, authorised insurer or self-insurer might in certain circumstances refuse to make a determination at least for the time being) remained unchanged, but a new sub-s.(2D) was substituted, to oblige the respondent to the application for impairment assessment to notify the applicant worker, within the 120 days now allowed under sub-s.(2B), of either its determination or its refusal to make a determination. The previously stated consequence of failing to make due response was no longer included in the new form of sub-s.(2D). Instead, a new sub-s.(2DB) was enacted.

"(2DB) If the Authority, authorised insurer or self-insurer fails to advise the worker in writing within 120 days of receiving the application - (a) of the determination; or (b) of the refusal to make a determination under sub-section (2C) - the worker is deemed to have suffered a serious injury."

That, it might be thought, worked in favour of the plaintiff, rather than against him. Instead of a worker's becoming "entitled to bring proceedings in accordance with this section" and "to have the question [of serious injury] determined in the proceedings" as previously provided by sub-s.(2D), the question of serious injury was to be resolved in favour of the worker, should the Authority, authorised insurer or self-insurer fail to respond within 120 days of receiving the application to have the degree of impairment determined. There was, of course, the difficulty that the application made by the plaintiff in this case on 26 August 1997 did not comply with the additional requirements of sub-s.(2BA) - which was scarcely surprising as the application was made well before those requirements were enacted. But this morning Mr Corrigan submitted on behalf of the respondent that compliance with sub-s.(2BA) was not essential in relation to applications made before 12 November 1997, as (he said) sub-s.(18A)[3]

must be taken to demonstrate. I do not explore the argument. Suffice it to say that if sub-s.(2DB) could be called in aid by the plaintiff, then the question of serious injury was finally resolved in his favour, or so it would appear.

34. In the County Court the defendant did not rely upon the sub-sections so far mentioned: rather it relied upon what followed, commencing with sub-s.(2DE). That sub-section (also introduced by s.47 of the amending Act in 1997) commenced so far as relevant:

"(2DE) The worker must not commence proceedings in accordance with this section .... unless - (a) the worker and the Authority, authorised insurer or self-insurer hold, or begin, a conference within 21 days after the response date [a term defined in sub-s.(19) by reference indirectly to the date on which injury was determined to be, or was deemed to be, a serious injury]; and ..." -

and the taking of a number of steps in succession was then required, including the making to the worker of an offer of settlement, either at the time of the conference or thereabouts; and if that offer was not accepted the making of a counter-offer by the worker; and if the counter-offer was not accepted the commencement of proceedings "not earlier than 21 days, and not more than 51 days after, the counter-offer is made." This is a somewhat simplified description of the steps described in the new sub-s.(2DE), but it is enough for present purposes to indicate the new conditions attached to the commencement of proceedings. Of course, none of these conditions were satisfied in this instance. There had been no conference held and no offers exchanged; nor had the plaintiff made any move in that direction, and it was in default of compliance with the conditions spelled out in the sub-section that the defendant argued, by reference to the introductory words of sub-s.(2DE), that the plaintiff was not entitled to commence his proceeding in December 1999.

39. On the face of the amending Act, it seems to me unlikely that these new provisions, including sub-s.(2DE), were intended to apply to a plaintiff who had already qualified under s.135A, as it stood before amendment, to bring a proceeding. As already indicated, an application made before the amendments came into force would probably not satisfy the requirements of the new sub-s.(2BA); nor, under the section as it stood before amendment, did the Authority, authorised insurer or self-insurer have any more than 60 days to make response. As I have said, in default of a response within 60 days (and so on 26 October 1997) the plaintiff, according to the section as it stood at the time, became by virtue of the statute itself "entitled to bring proceedings in accordance with this section", and "to have the question [of serious injury] determined in the proceedings"; so why should it be thought that the new provisions, introduced as from 12 November 1997, operated to take away that right?

42. It is trite law that any right, once vested, may be protected from changes made by legislation subsequently enacted. There is a common law presumption that statutes are not intended to prejudice rights previously defined by reference to existing facts and circumstances, and the common law presumption is nowadays enshrined in statute, in Victoria in s.14(2)(e) of the Interpretation of Legislation Act 1984. It is that presumption, whether at common law or by statute, that in my opinion is determinative here.

45. The right that the plaintiff acquired under s.135A as it stood before amendment by the amending Act was not the "mere right of a member of the public (or even of some class) to take advantage of a statute in the form in which it stood before amendment"; commonly such a "right" does not survive the effect of the amendment, as I said in McDonald v Commissioner of Business Franchises[4]. This was something more: for on 26 October 1997 the plaintiff became entitled, by virtue of an express provision in the statute itself and after himself taking the prescribed step of making application as required, to bring the proceeding that he later instituted, and to do so without any further preliminary step or condition and as well to have the question of serious injury determined within that proceeding. This was indeed a "right" that "accrued" to the plaintiff on 26 October upon default by the defendant (a self-insurer) in making response to the plaintiff's application. Perhaps it was no more than a right to commence a proceeding, as Mr Corrigan stressed in his argument this morning, but having been expressly conferred (if not indeed created) by sub-s.(2D) of s.135A in consequence of the plaintiff's own conduct and the failure of another to make response, it fell to be protected against subsequent amendment to s.135A, just as the right to bring an appeal or to continue a proceeding was protected in C.S.R. v Irving[5] and Esber v Commonwealth[6], among others. Nor was the plaintiff's right a mere matter of procedure: the entitlement bestowed upon the plaintiff by sub-s.(2D) was, in my opinion, a substantive right, as the foregoing cases demonstrate. See also Swannell v Farmer[7] where Batt, J.A. characterised the relevant provisions of the Transport Accident Act 1986, which were not unlike s.135A, as serving to extinguish substantive rights and liabilities and then resuscitate or recreate them on conditions.

48. In this context it is at least interesting to note s.138A, itself a provision enacted by s.51 of the amending Act in 1997. It reads:

"For the avoidance of doubt, it is hereby declared that all the provisions of this Division contain matters that are substantive law and are not procedural in nature".

In 1997 s.135A was indeed in the same Division as s.138A and so, as from 12 November 1997 at least, there can be no doubt about the characterisation of s.135A and the sub-sections within it. The provisions of s.135A are substantive law and so too, it must follow, were the amendments made by s.47 of the amending Act. Mr Corrigan submitted that even a provision purporting to be declaratory only, as was s.138A, cannot be used to assist in characterising the provisions of s.135A before amendment, on the ground that s.138A itself only came into force on 12 November 1997, but there may be difficulties in drawing a line so firmly. I do not pursue the point, however, for there is no need to rely upon s.138A. Independently of that section, I think it clear, as I have said, that the entitlement expressly created by sub-s.(2D) (in this case created in the plaintiff) was a substantive right, and so apt to be protected by the presumption against retrospectivity.

53. There being nothing in the amending Act to cast its effect back beyond 12 November, I would therefore conclude thus far that the right that accrued to the plaintiff on 26 October 1997 was not prejudiced by the amending Act which came into effect on 12 November.

57. In the County Court, the judge accepted the submission of the defendant that, for non-compliance with s.135A as amended, the plaintiff's proceeding was incompetent. It is apparent that her Honour accepted the submission, first, that when taken in conjunction, the substituted sub-s.(2D) and the new sub-s.(2DB) "had the combined effect that the plaintiff's injury would have been deemed a serious injury at the expiration of 120 days from the date of receipt of his written application for a determination, made in accordance with sub-section (2A) as the legislation stood before 12 November 1997."

60. Despite Mr Corrigan's submission this morning, I still see this, if I may say so with respect, as a somewhat difficult marriage of the provisions before amendment and the provisions after amendment. The application itself was good, according to the unamended s.135A, but the consequences which then attached to non-response within 60 days were attached by her Honour to the failure to make response within 120 days. I suggest that if the Authority, authorised insurer or self-insurer were now claiming to have had 120 days to respond, the argument would have been rejected: the making of the response or the failure to respond, as well as the consequences of that response or that failure, were surely governed by the Act as it stood at the time of the response or the failure to respond - at least in a case like this, where the failure to respond had occurred by 26 October 1997.

63. To my mind, that conclusion is reinforced by the new sub-s.(18A) which was introduced (again by s.47 of the amending Act) specifically to deal with an application for determination made before 12 November 1997 and in respect of which the period of 60 days had not expired by that date. In such a case - and as I see it, only in such a case - the time for response was expressly extended to 120 days, albeit to 120 days after receiving from the worker a copy of medical reports and affidavits attesting to other supporting material (as required when a fresh application was made by virtue of the new sub-s.(2BA)). That the amended s.135A should deal specifically with an application still current on 12 November 1997 supports, in my opinion, the conclusion that an application already determined, or in respect of which the failure to make a determination had already been established, was not affected. And that there was provision in a new sub-s.(6A) to cope with a case in which sub-s.(2DE) itself caused difficulty, does not, in my opinion, militate against the conclusion otherwise reached. (Mr Corrigan told us that sub-s.(6A) was introduced by amendment during the passage of the Bill through Parliament, which to my mind only reinforces the probability that it was intended to do no more than to overcome, if it could, difficulties that were otherwise unforeseen.)

66. The more important point so far as her Honour was concerned was this submission:

"Counsel for the defendant submitted that s.135A of the Act, as it applied at the date of the issue of the plaintiff's writ, was a substantive provision, conditionally extinguishing a field of potential rights and liabilities, with the result that his common law cause of action did not arise unless the requirements of sub-s.(2DE) were met. He relied in this regard upon the decision of the Court of Appeal in State of Victoria v Robertson [2000] VSCA 113 at p.14 per Batt, J.A. citing Swannell v Farmer [1998] VSCA 104; (1999) 1 V.R. 299".

State of Victoria v Robertson is now reported[8].

71. Swannell, however, was a case in which the relevant cause of action, if it existed at all, existed independently of statute. It was the common law right to bring proceedings for damages for injury or death after a transport accident. It was a cause of action which was specifically prohibited by legislation unless certain steps were taken, and none of them had been taken before the prospective plaintiff died. The court saw the statutory prohibition as a substantive provision, extinguishing rights and liabilities, and discerning no reason not to give the statutory provision full effect, concluded that nothing had survived to the plaintiff's estate. The present case is very different. Section 135A is concerned only with the worker's entitlement to bring proceedings at common law and under the section as it stood before amendment the plaintiff, in virtue of the step which he himself had initiated, became, by express provision, entitled to bring the very proceeding which he later instituted. Yet now it was being said that, because of an amendment to s.135A which came into force only after that entitlement arose, he was denied that right.

74. Robertson, too, is a case that is readily distinguished. There a proceeding was commenced in the County Court for damages for injury suffered in 1996. On 17 November 1997 a determination had been made on behalf of the Authority, under s.135A(3) of the Act, that the plaintiff's degree of impairment was 30% or more by virtue of which the plaintiff was deemed to have a "serious injury" under the section as it stood before amendment by the amending Act. That was all that was required under s.135A before its amendment as a prerequisite to the worker's bringing a proceeding to recover damages at common law, and on 12 December 1997 the plaintiff did commence such a proceeding.

77. The amending Act received the Royal Assent on 23 December 1997 but by virtue of s.2(2) the relevant amending section, inter alia, was expressly deemed to have come into operation on 12 November 1997. (The amendments it was making had been much publicised and hence, no doubt, the justification for its back-dating). It was on 17 November 1997 that the plaintiff became entitled to bring proceedings under s.135A as it stood before amendment, yet on 23 December, it was declared otherwise by s.135A as amended, with effect from 12 November. The question in Robertson was whether that back-dating had effect, according to the terms of the statute, so as to prejudice the plaintiff's entitlement otherwise existing under s.135A. Plainly it did; the back-dating had to be given effect because Parliament had said so. That is the decision in Robertson and, when so understood, it says nothing of this case. In this case it was on 26 October 1997 that the plaintiff became entitled under s.135A(2D), as it then stood, to bring the proceeding subsequently launched in 1999 - and that right was not prejudiced by the back-dating of the amending Act to 12 November 1997.

80. In his submissions this morning, Mr Corrigan insisted that sub-s.(2DE) could apply to the plaintiff notwithstanding that his application to have the degree of impairment determined had been made on 26 August, and so well before the amending Act came into effect on 12 November. He pointed out that if the 60 days allowed under s.135A before amendment was extended according to the amending Act to 120 days, the relevant period ended on 24 or 25 December, and he submitted that, no response having been made to the application within that period, the plaintiff had the benefit of the new sub-s.(2D) in that the injury he relied upon was deemed to be serious injury. In such circumstances, he submitted, the plaintiff very properly faced the new "gateways" of sub-s.(2DE).

83. But Mr Tobin had the answer to this, in my opinion. It may be that in this case the extension of the period of 60 days by a further 60 days would have carried the plaintiff beyond 12 November and so into the field covered by the amending Act, but that would not be so in every case. A worker who having been injured made his application, let us say, two months before 26 August 1997 could not be so favoured: the period for response, even when extended, would still end before 12 November, and the amended s.135A could surely not then fix the consequence of the failure to respond within time, at least to the extent of Mr Corrigan's argument. The possibility of the amended s.135A applying to the plaintiff then turns out to be adventitious.

86. Anyway, as I see it, that is not the problem which we must resolve. The fact that s.135A could, perhaps, be applied to the plaintiff is what creates the problem, for it creates the conflict between the old sub-s.(2D), which on its face entitles the plaintiff to bring the proceeding that he did and have the question of serious injury

determined in that proceeding, and the new provisions of s.135A, which on their face would deny that entitlement. It is that conflict that falls to be resolved. That is the problem and it is resolved, in my opinion, by the application of the presumption, whether at common law or under statute, against giving s.135A as amended any force or effect in relation to a right which has already accrued under the former s.135A(2D). Because it was mentioned in argument, I emphasise that I do not decide, and say nothing about, the case in which there was not a failure to respond within 60 days (as there was in this case) but a determination that the degree of impairment was less than 30%, where (as was not the case in Robertson) that determination was made before 12 November 1997.

90. Without Robertson in support it seems to me that the argument of the defendant cannot be sustained. To put it shortly, the plaintiff had before 12 November 1997 an entitlement to bring the proceeding that he did, and to do so without further impediment or condition. That right was a substantive right and the amendments to s.135A which came into effect on 12 November had no application to this plaintiff, such as would deny to him the right that had already accrued to bring the proceeding according to s.135A as it stood before amendment.

93. For these reasons I would allow this appeal and make orders, in effect, reversing the decision below.

99. I agree that this appeal should be allowed for the reasons advanced by the learned presiding judge.

(Discussion ensued re costs.)

PHILLIPS, J.A.:

105. Mr Corrigan has now made application in relation to costs. He submits that the appellant has, in effect, succeeded on a point not argued below. He refers to Williams Civil Procedure in Victoria, Volume 1 paragraph 64.24.5. He submits that not only should there be no order for costs in favour of the appellant, but that the order for costs should be in favour of his client, the respondent, and indeed that he should also have the costs below by way of substituted order of this Court.

108. We have considered the application and are not minded to accede to it.

111. So far as the costs below are concerned, it seems to us that, the defendant having taken out the summons which, in our opinion, ought to have been dismissed, there is no real case for ordering that the costs below not follow the event. Our view is to some extent reinforced by what is said by the judge in paragraph 2 of her reasons for judgment where there is express reference made to the argument that "before subs.(2DE) came into operation the plaintiff had already acquired the right to bring the proceeding seeking an adjudication" of the question of serious injury, and the submission that "this entitlement was not affected by the operation of sub-section (2DE)." It may be that the argument below concentrated (as Mr. Corrigan said) upon the operation of the new sub-s.(2DE), but the arguments are plainly inter-related and in the end we do not think it sufficient to deny to the plaintiff, and now the appellant, either the costs below or the costs of the appeal.

114. Accordingly, the orders of the Court are as follows:

1. The appeal is allowed with costs. 2. The orders made in the County Court on 20 November 2000 are set aside and it is ordered in lieu that: (a) the application by summons filed on behalf of the defendant be dismissed; (b) that the defendant pay the plaintiff's costs of the application to be taxed on Scale D; (c) that there be a certificate for counsel's fees as brief fee of $1,750 for each of the two days, together with costs fixed at $750 for the appearance before Master Patkin on 13 October 2000; and (d) that there be a further order for costs of $279 in relation to the hearing of judgment.

The Court grants the respondent a certificate under the Appeal Costs Act.

[3] As to which see [[] below.

4] [1993] VicRp 95; [1993] 2 V.R. 632 at 649.

[5] (1905) A.C. 369 at 372-3.

[6] [1992] HCA 20; (1992) 174 C.L.R. 430.

[7] [1998] VSCA 104; (1999) 1 V.R. 299.

[8] [2000] VSCA 113; (2000) 1 V.R. 465. The reference to Swannell is found at 474.