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[2003] WADC 235
procedural. The defendant's application was dismissed. The Registrar found that the relief sought was not available under O 12 r 7, that O 16 r 1 could not be invoked without an appearance, and that the...
The defendant tried to end the plaintiff's injury claim before entering an appearance. The Registrar held that the procedural rules did not permit the defendant to seek the relief in that way. He also held that the statutory threshold for awarding damages did not, on the terms relied upon, prevent the plaintiff from starting the action or make the indorsement defective. The application was dismissed.
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2,233 words · generated 01/10/2026
In Maddock v Crendon Machinery [2003] WADC 235, Deputy Registrar Harman dealt in chambers with an application by the defendant to strike out the plaintiff’s claim or obtain judgment. The application was heard on 1 October 2003 and decided on 3 November 2003. The listed result is “Dismissed”.
The plaintiff, Raymond Graeme Maddock, claimed damages for injuries allegedly sustained in an accident during his employment on or about 16 April 1997. The indorsement on the writ alleged that the accident was due to the defendant’s negligence, breach of statutory duty and/or breach of the employment contract by the defendant or its servants or agents ([15]). The judgment does not set out further evidence about the accident or the injuries.
1 cited instrument linked from this judgment.
The defendant relied on O 12 r 7 of the Rules of the Supreme Court of Western Australia to bring its application ([2]). It sought an order striking out the claim on grounds including no reasonable cause of action, scandalous, frivolous or vexatious pleading, or abuse of process ([1]). It also sought judgment. The Registrar noted that the defendant had not filed an appearance ([5]). At the hearing, the plaintiff told the Registrar the writ had not been served on the defendant, although the Registrar noted that this fact did not emerge from the file papers ([11]).
The main statutory point concerned s 93E(3) of the Workers’ Compensation and Rehabilitation Act 1981. As quoted in the judgment, it provided that damages could only be awarded if specified disability criteria were met ([16]). The defendant argued, in substance, that the absence of a determination under that provision affected the sufficiency or viability of the claim.
The Registrar dismissed the application for both procedural and substantive reasons. The defendant could not use O 12 r 7 to seek judgment, and it had not satisfied the appearance requirement for a summary-judgment application under O 16 r 1 ([3]–[5]). As to strike-out, the Registrar held that the indorsement was not shown to be deficient and that the statutory provision operated at the point of determination, rather than barring commencement of the action ([15]–[18], [22]–[25]).
The decision has two connected strands: the route the defendant used, and the legal significance of the statutory threshold.
First, the Registrar read O 12 r 7 according to its stated scope. The rule, set out at [2], allowed a defendant, before entering an appearance, to move to set aside the writ or its service, or to discharge an order giving leave for service out of the jurisdiction. It did not provide a general pre-appearance route to obtain judgment. The Registrar said this expressly at [3]. He added that a motion to set aside the writ under the rule would qualify only if it proceeded on the basis that the writ was a nullity. The application before him did not do so ([12]).
Second, O 16 r 1(1) allowed a defendant to apply for summary judgment within 21 days after appearance, or later with leave ([4]). The defendant had not entered an appearance. The Registrar treated appearance as a condition on which the summary-judgment jurisdiction depended, not merely a procedural detail ([5]). He also explained that entering an appearance would be a significant step because it acknowledged the Court’s jurisdiction ([5]). This distinction mattered: before appearance, the available procedural route was limited to what O 12 r 7 permitted.
The Registrar then considered the strike-out grounds. O 20 r 19(1), quoted at [8], allowed the Court to strike out or amend a pleading on specified grounds, including that it disclosed no reasonable cause of action or was an abuse of process. The Registrar noted that O 20 r 19(3) referred to an application being made within 21 days of service of the relevant pleading or writ, but he considered that timing language did not condition the Court’s jurisdiction ([9]–[11]). He also noted the defendant’s difficulty that there was no statement of claim, and assumed that the defendant meant to challenge the writ indorsement ([13]).
The indorsement alleged an employment injury and identified negligence, breach of statutory duty and/or breach of contract as the bases of the claim ([15]). The defendant did not otherwise challenge the form of the indorsement. The Registrar therefore focused on whether the statutory damages threshold meant that the indorsement failed to disclose a cause of action.
His reading was that s 93E(3) concerned the point when the action was being determined and damages considered, rather than the earlier point when a writ was issued ([17]). The absence of a determination at commencement, or of a reference to such a determination in the indorsement, did not establish that the indorsement was insufficient. He further reasoned that the provision did not change what constituted the cause of action ([17]–[18]).
Finally, the Registrar rejected the suggestion that the action was an abuse of process simply because the plaintiff might not ultimately meet the statutory criteria. He considered it wrong to move the statutory prohibition from the point at which it was expressed to operate to an earlier point in the litigation ([22]). He also observed that the plaintiff had taken no step beyond issuing the writ, and that the legislature had intended an action could be commenced without a prior determination by the Directorate ([24]). The applicant had not discharged the onus of establishing that the Court should grant the relief sought ([6], [21]).
The judgment does not describe a broad change in the law before and after the decision. It is a decision about applying existing procedural rules and interpreting the timing of a particular statutory restriction. The safest account is therefore of the principles the Registrar applied, rather than a claim that the case changed the law.
On procedure, the ruling makes explicit that the pre-appearance mechanism in O 12 r 7 was limited to the matters stated in that rule. It did not permit this defendant to seek judgment. For summary judgment, the Registrar read O 16 r 1 as requiring an appearance before that process could be invoked ([3]–[5]). These conclusions arise from the wording of the rules quoted in the judgment, and concern the application before the Registrar.
On the statute, the Registrar distinguished starting an action from obtaining damages at the determination stage. In his reading, s 93E(3) did not add to or subtract from what constituted a cause of action, and the failure to plead a prior determination did not make the indorsement insufficient ([17]–[18]). He considered it inconsistent with the statute’s expressed timing to apply the restriction at commencement ([22]).
The judgment also refers to the High Court’s statement in Daniels Corporation Pty Ltd v Australian Competition and Consumer Commission that statutory provisions are not construed as abrogating important common law rights, privileges and immunities without clear words or necessary implication ([23]). The Registrar invoked that principle in support of caution about reading legislation as restricting a plaintiff’s ability to bring an action.
The supplied judgment does not establish what the law was before the statutory wording changed, beyond noting that a former prohibition expressed to apply at the commencement of an action had been repealed ([22]). Nor does it supply later judicial treatment of Maddock. Accordingly, it is not possible from this source alone to describe a later state of the law or whether subsequent courts adopted, limited or displaced the Registrar’s reasoning.
At [5], the Registrar said that before appearance, a defendant’s opportunity to use the Court’s processes was limited to O 12 r 7. In plain English, a defendant who has not formally appeared cannot use every procedural application that may later be available. The rule cited here covered only specified challenges to the writ or its service.
At [12], the Registrar said an application would qualify as a motion to set aside the writ under O 12 r 7 only if it was based on the writ being a nullity. In plain English, the rule was not a general-purpose method for stopping a claim because the defendant considered it weak or premature.
At [17], the Registrar said the statutory prohibition engaged when the action was in the process of being determined, not when the writ was issued. In plain English, he treated the disability threshold as relevant to whether damages could ultimately be awarded, not as a precondition to starting the court action.
At [18], he said the provision did not “add to or detract from what constitutes a cause of action”. This means that, in his analysis, the statutory conditions for damages did not alter the basic legal claim described in the indorsement.
At [22], he said it would be wrong to activate the prohibition at an earlier time than the statute expressed. In plain English, the Court should not bring forward the effect of the statutory restriction to create a basis for striking out the action at its commencement.
At [24], the Registrar said the plaintiff had taken no step beyond issuing the writ and that the legislature intended an action could be commenced without a prior Directorate determination. This was central to his conclusion that issuing the writ was not itself an abuse of process.
The decision is most directly relevant to a procedural situation with these features: a defendant has not entered an appearance; the defendant seeks judgment or strike-out relief before appearance; and the application is said to rely on a rule that allows only specified pre-appearance motions. In Maddock, the Registrar treated the text of O 12 r 7 as the controlling limit and rejected using it to obtain judgment ([2]–[5], [12]).
It may also be relevant where a party argues that a statutory condition affecting whether damages may be awarded means that the plaintiff could not commence proceedings before the condition is established. The Registrar’s reasoning depended on the statutory language as he quoted it and on his conclusion that the condition applied at determination, not commencement ([16]–[18], [22]).
The case should not be treated as deciding every question about statutory thresholds, workers’ compensation claims, or strike-out applications. The judgment addresses the specific statutory wording and the procedural rules placed before the Registrar. The result could therefore turn on different statutory language, different procedural steps, or a different kind of pleaded claim. The decision itself also records that the defendant did not challenge the indorsement’s sufficiency apart from its reliance on s 93E(3) ([16]).
The supplied judgment does not cite any later court decision treating Maddock as precedent. It was delivered in 2003, and the text provided does not include subsequent history. No conclusion about later judicial adoption, distinction, approval or reversal can be drawn from this source alone.
The judgment does discuss two other authorities. It refers to De San Miguel v Ryanex Pty Ltd [2003] WADC 147, in which another Registrar had struck out an action by reference to the same statutory provision ([19]). Deputy Registrar Harman did not adopt that result. He said the reasons in that case were obscured by the Code, and rejected the idea that case-management or orderly-disposition considerations should outweigh a plaintiff’s ability to have a claim determined ([19]–[20]). The judgment does not provide the full reasoning in De San Miguel, so comparison beyond those stated points would go beyond the supplied text.
The Registrar also cited Daniels Corporation Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 for the “well settled” principle that statutory provisions are not read as abrogating important common-law rights, privileges and immunities without clear words or necessary implication ([23]). That citation supports the interpretive approach stated in Maddock. It does not, on the material supplied, establish how later courts have treated Maddock itself.
Several questions remain outside the decision’s stated scope. The judgment does not decide whether Maddock would ultimately satisfy the disability requirements in s 93E(3), whether damages would be awarded, or what evidence would be needed to establish those matters. It addresses the timing and procedural consequences of the asserted statutory threshold at the strike-out stage, not the final merits of the personal injury claim ([16]–[18], [24]).
Nor does the judgment determine whether the plaintiff’s allegations of negligence, breach of statutory duty or breach of contract would be proved. Those appear in the indorsement as pleaded bases of the claim, but the Registrar was not deciding liability for the accident ([15]).
The judgment does not explain the full procedural record concerning service. It records that the plaintiff said at the hearing that the writ had not been served, while noting that this fact was absent from the file papers ([11]). It also does not resolve what practical significance that fact might have had under other rules or at a later stage.
The source does not provide the text of the repealed statutory prohibition that the Registrar mentioned at [22], so the exact contrast between the former and current provisions cannot be independently assessed here. It also does not establish the subsequent history of the ruling, or how later courts interpreted the relevant rules or s 93E(3).
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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : MADDOCK -v- CRENDON MACHINERY [2003] WADC 235
Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia O 12, r 7 O 20, r 19(1) and O 16, r 1 - Application to strike out statement of claim - Application for summary judgment in the absence of appearance.
Workers' Compensations and Rehabilitation Act 1981
Daniels Corporation Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; (2002) 192 ALR 561
De San Miguel v Ryanex Pty Ltd [2003] WADC 147
Castro v Murray [1854] EngR 673; (1875) LR 10 Exch 213
Dalgety Australia Ltd & Anor v De Vahl Rubin & Ors; unreported; SCt of WA; Library No 5485; 24 August 1984
Day v William Hill (Park Lane) Ltd [1949] 1 All ER 219
Dey v Victorian Railways Commissioners [1949] HCA 1; (1948-1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Haasy v Town & Country Demolition Pty Ltd [2002] WADC 81
Howden v "Truth" and "Sportsman" Ltd [1937] HCA 74; (1937) 58 CLR 416
Kimberley Downs Pty Ltd & Ors v Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
Lawrance v Norreys [1890] 15 App Cas 210
Pancontinental Mining Ltd v Posgold Investments Pty Ltd and Others [1994] FCA 983; (1994) 121 ALR 405; 13 ACSR 117
Re Monger; Ex parte Woodford [1999] WASC 273
Republic of Peru v Peruvian Guano Company [1887] 36 Ch D 489
Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152
1 DEPUTY REGISTRAR HARMAN: The defendant has brought an application seeking an order that the statement of claim be struck out on the grounds that it discloses no reasonable cause of action, that it is scandalous, frivolous or vexatious or otherwise an abuse of process. Alternatively it seeks judgment.
2 In bringing the application the defendant purports to utilise the mechanism provided by O 12, r 7. It provides:
"A defendant to an action may at any time before entering an appearance therein, serve notice of motion to set aside the writ or service of the writ, or notice of the writ on him or discharging any order giving leave to serve the writ or notice on him out of the jurisdiction."
3 Insofar as the defendant seeks judgment the application does not fall within the scope of the rule.
4 There is a further procedural impediment to the defendant's success. Order 16, r 1(1) provides:
"Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment ..."
5 The defendant has not filed an appearance. Accordingly it has not met a condition upon which the enlivenment of jurisdiction depends. Order 16 does not otherwise allow for judgment. By filing an appearance a defendant would take the significant step of acknowledging the jurisdiction of the Court. Prior to filing an appearance a defendant's opportunity for seeking to avail itself of the processes of the Court is limited to the scope provided by O 12, r 7.
6 Before I leave that part of the application, regardless of the procedural impediments the defendant would confront a significant substantive obstacle in the form of the onus. It is worth recording that wherever the evidentiary onus may lie; ultimately it is for the applicant to satisfy the Court that it is appropriate for it to respond as the applicant proposes. As I understand the defendant's submission, the action should now be determined so that it could rely upon the plaintiff's present failure to satisfy a statutory provision that is expressed to have application at the point when an action is determined.
7 It is difficult to discern that there could be any proper basis to confer such a tactical advantage. In my opinion so to do would be utterly at odds with the proper role of a court.
8 As to the balance of the application, the defendant seeks to draw upon O 20, r 19(1) which is as follows:
"The Court may at any stage of the proceedings, subject to paragraph (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may order the action be stayed or dismissed or judgment be entered accordingly, as the case may be."
"Subject to paragraph (4) an application for an order under paragraph (1) must -
(a) be made within 21 days of the service of any pleading, or amended pleading, or writ to which the application refers;
10 Paragraph (4) of the Rule has been repealed.
11 Although it does not emerge from the papers on the file, at the hearing of the application I was informed by the plaintiff that the writ had not been served on the defendant. Be that as it may, par 3 does not condition jurisdiction, it simply expresses the period during which recourse to it would be had in the usual circumstances. The filing of an appearance is not expressed to be a condition of any exercise of jurisdiction under r 19. The critical issue is whether recourse may be had to r 19 on an application under O 12, r 7.
12 In my opinion an application would only qualify as a motion to set aside the writ if brought on the basis that the writ was a nullity. On its terms the application is not within the scope of O 12, r 7.
13 Be that as it may, dealing with the terms of the application the onus would be on the defendant. Although by the application the attack is mounted on the statement of claim, there is no statement of claim. I assume that the defendant intended to refer to the indorsement.
14 Nothing was addressed to me during the course of submissions that would suggest that it was scandalous, frivolous or vexatious.
15 The question of whether the indorsement discloses a reasonable cause of action can only be determined within its perimeter. It is as follows:
"The plaintiff claims damages from the defendant by reason of injuries suffered by him in an accident which occurred during the course of his employment on or about the 16th day of April 1997, which accident was due to the negligence, breach of statutory duty and/or breach of contract of employment of the defendant and/or its servants or agents."
16 The defendant did not take issue with the sufficiency of the indorsement as an indorsement. As I understand the defendant's position, the only basis for suggesting that there is any doubt as to its sufficiency are the provisions of Div 2 of Pt IV of the Workers' Compensation and Rehabilitation Act 1981, in particular s 93E(3), which is as follows:
(a) it is agreed or determined that the degree of disability is not less than 30 per cent ...
17 As I indicated to the defendant during the course of the hearing, as it is expressed the prohibition does not engage with an action at the time of the issue of the writ but rather when the action is in the process of being determined. The failure to obtain a determination for the purposes of the provision prior to commencing an action or perhaps to mention any such determination in an indorsement is not a measure by which the sufficiency of an indorsement ought to be judged. Even if the prohibition was expressed to operate at an earlier time, in the absence of further legislative interference the satisfaction of the terms of any exemption would not be properly considered to be an integral part of the cause such that it ought to be expressed as part of an indorsement.
18 In short the provision does not add to or detract from what constitutes a cause of action. There being no impediment to bringing an action on a cause it is difficult to understand that there could be any basis to consider that the provision has any relevance to the manner of expression of an indorsement.
19 As to whether the indorsement ought be struck out as an abuse of process, I was referred to a determination of Registrar Kingsley in De San Miguel v Ryanex Pty Ltd [2003] WADC 147. In that case the Registrar was able to conclude that the action either was or would be unsustainable. In striking out the action he relied upon the same statutory provision. The Registrar referred to sensible commercial reasons why that action should have proceeded no further. Whatever the reasons may have been I find them to be obscured by the Code.
20 In my opinion it would be wrong to conclude that either case management or any other considerations that relate to the orderly disposition of actions should be measured as being more significant than the right of a plaintiff to bring and have determined an action brought upon a cause. The Court has no significant interest in whether or not a file is "active". It is obliged to maintain its record of the action regardless. Otherwise there is no evidence from the party that carries the onus.
21 I accept that there is a prospect that for whatever reasons the plaintiff may not succeed in the action. That prospect presents risk for each party. I am not satisfied that the Court has a proper role in protecting a litigant from the results of folly. And there is no evidence from the party that carries the onus.
Maddock
Crendon Machinery [2003] WADC 235
(1964) 112 CLR 125
(1994) 121 ALR 405
(2002) 192 ALR 561
(1937) 58 CLR 416
The defendant's application was dismissed. The Registrar found that the relief sought was not available under O 12 r 7, that O 16 r 1 could not be invoked without an appearance, and that the substantive grounds for striking out the indorsement or action had not been established ([3]–[5], [12], [17]–[25]).
22 In choosing to express itself as it did, the legislature is properly taken to have understood that the process of entering judgment can be distinguished from the process of commencing an action. At the time that it enacted the prohibition it repealed a prohibition that was expressed to apply at the commencement of an action. In my opinion it would be wrong for the Court to effectively disengage the prohibition from the point at which it is expressed to operate in order to activate it at an earlier time. It is incomprehensible that it would do so to manufacture the ground to found an apprehension of abuse. Why the Court would be motivated to consider taking that course eludes me.
23 In Daniels Corporation Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; (2002) 192 ALR 561 at 565 the High Court recently recognised the "well settled" principle "that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect." In recent times it seems to have been the prevailing view in this jurisdiction that consideration of at least the qualification "necessary" is properly overlooked.
24 In my opinion in issuing the writ the plaintiff did not engage in any abuse of process. The plaintiff has taken no step beyond that point. Clearly the legislature intended that an action could be commenced in the absence of a determination by the Directorate.
25 In my opinion the application was inappropriately brought. Consideration of its substantive merits demonstrates that it ought properly fail.