Ostojic v Trazmet Pty Limited

District Court Rules Pt 11A r3 and/or Pt 9 r17 Workers Compensation Act 1987 (NSW) s151A Workers Compensation Legislation Amendment Act 1998 (No 85) Schedule 1[65] LEGISLATION CITED: Workers Compensation Legislation Amendment Act 2000 (No 87) Workers Compensation Legislation Further Amendment Act 2001 (No 94) Workers Compensation (Benefits) Amendment Act 1989 (No 133), Sch 1[1], s151A(3)(b)

Allina Pty Ltd v FCT (1991) 99 ALR 295 Commonwealth v Verwayen (1990) 170 CLR 394 Corcoran v Tyre Marketers Australia [2001] NSWCA 300 DA Christie Pty Ltd v Baker [1996] 2 VR 58 Giannarelli v Wraith (1988) 165 CLR 543 Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70 House v The King (1936) 55 CLR 499 Hunter v Chief Constable of the West Midlands [1982] AC 529 CASES CITED: Nominal Defendant v Manning (2000) 50 NSWLR 139 North Broken Hill Limited v Vockins (1999) 19 NSWCCR 193 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re MacManaway and Re House of Commons (Clergy Disqualification) Act 1901 [1951] AC 161 Rogers v R (1994) 181 CLR 251 Technical Products Pty Limited v State Government Insurance Office (Queensland) [1988] 167 CLR 45 Walton v Gardiner (1992-93) 177 CLR 378 Workers' Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642

Veljko OSTOJIC (Claimant) PARTIES: TRAZMET PTY LIMITED (Opponent)

B W INGRAM (Claimant) COUNSEL: S G CAMPBELL, SC/ S M KETTLE (Opponent)

Taylor & Scott (Claimant) SOLICITORS: Hunt & Hunt (Opponent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40452/04 DC 11673/01

GILES JA SANTOW JA TOBIAS JA

5 MAY 2005 Veljko OSTOJIC v TRAZMET PTY LIMITED Judgment 1 GILES JA: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION This is fundamentally a question of statutory interpretation of an earlier version of the workers compensation legislation namely the Workers Compensation Act 1987 (NSW) ("WCA" or "Act"). It arises in the context of a workplace injury. By the time the injured claimant worker Mr Ostojic, brought his original claim against his defendant employer Trazmet Pty Limited ("Trazmet" or "the opponent") in the Compensation Court (7 January 2000), access to (modified) common law rights had been reinstated. This was under the 1987 version of that Act. But they were reinstated in such a way that the worker had to elect between those rights and a lesser level of statutory compensation. 3 The primary question in this leave application is whether under that Act the claimant, having failed in a back, neck and leg claim for statutory compensation under s66 of the Act, being awarded only $780 for partial loss of use of his left thumb, must be taken to have elected to take his statutory rights. If so this denies him access to any common law ones. 4 The employer, Trazmet Pty Limited, successfully persuaded the District Court trial judge Maguire DCJ that he had so elected. This was after an earlier unsuccessful action by Trazmet to have the claimant's original claim struck out under the Rules, as frivolous (Pt 11A r3), or embarrassing (Pt 9 r17), or both. 5 The application for leave to appeal is brought from an interlocutory judgment of Maguire DCJ, on the motion of Trazmet, making orders summarily dismissing, staying or striking out the claimant's entire Statement of Claim on the basis of s151A WCA together with the relevant part of the District Court Rules 1973: DCR Pt 11A r3, Pt 9 r17. 6 Put in terms of the statute, the substantive issue before Maguire DCJ and in this appeal is whether the award by the Compensation Court (Commissioner Wright) of that sum of permanent loss compensation constituted an election within the meaning of s151A WCA, thereby disentitling the claimant from seeking common law damages in respect of damage sustained to other parts of his body in the same workplace incident. 7 There is a further question posed by the Notice of Contention which Trazmet would wish to file, were leave granted to the claimant. It was whether the determination of Commissioner Wright, to the effect that he was not satisfied of any permanent injury to neck, back or legs, itself constituted an "award in respect of that loss compensation", though an award denying compensation. Maguire DCJ rejected that contention. It did not matter, as he was satisfied that the award of $780 in any event constituted such an award, treating the claimant's injury as encompassing the totality of the physical and mental consequences from the occurrence enlivening his original claim. 8 Resolution of these issues requires consideration of various provisions of the WCA as it was in force during the relevant history of these proceedings. In particular, the question is whether the word "injury" in the context of s151A has that holistic sense (one workplace 'injury' with multiple losses) or whether the WCA contemplates a multiplicity of 'injuries' arising from one workplace incident. If the latter were correct, this would allow the injured worker to make an individual statutory election in respect of each specific "item" of injury. This is so long at any rate as that item of injury was not the product of another, as when a back injury radiates to neck, arm or leg, rather than the incident independently causing separate sites of injury. 9 To some extent the substantive issue is masked behind a procedural one. It is whether Maguire DCJ ought even to have entertained Trazmet's motion rather than striking it out as being itself an abuse of process. This was given that Urquhart DCJ had previously dismissed an earlier motion of Trazmet seeking only part of the Statement of Claim to be struck out albeit on different grounds, namely it being frivolous or embarrassing. The claimant contends that even if there were real differences between the two motions, Trazmet ought not to have been permitted to re-litigate the case it presented to Urquhart DCJ and must be taken to have waived its right to seek dismissal of the whole claim by its conduct of those proceedings. Trazmet responds by pointing to this second application being on an entirely new basis, namely s151A WCA and arising out of an application to amend its defence.

THE LEGISLATION 10 I first set out the relevant version(s) and statutory history of s151A WCA. In the current version of the WCA, this section has been completely replaced (by the Workers Compensation Legislation Further Amendment Act 2001 (No 94)). The substitute section bears little resemblance to the section at issue here. This case is concerned with the operation of the earlier s151A, which enacted an election procedure between damages at common law and "Table of Disabilities" compensation. That section itself underwent a number of amendments, principally to subsection (3), prior to its substitution. The course of these amendments may be used legitimately as an aid to interpretation of the particular version applicable to this case: Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70. However in taking this approach, a Court must not simply presume that the Legislature has changed its intention but must consider also whether the words in the later amendments have in fact been inserted to remove possible doubts: see Allina Pty Ltd v FCT (1991) 99 ALR 295 at 303; Re MacManaway and Re House of Commons (Clergy Disqualification) Act 1901 [1951] AC 161 at 177-8. 11 Both parties appear to accept that this case is governed by s151A WCA in the form in force after the 1998 amendments to the WCA ('the old s151A'); that is up to and including the amendments made by the Workers Compensation Legislation Amendment Act 1998 (No 85) Schedule 1[65]. I set out this version of s151A in full below: "151A. Election ¯ damages or "Table of Disabilitie s" compensation (1) In this section and in section 151V

" damages " does not include damages to which Part 6 of the Motor Accidents Act 1988 applies; "permanent loss compensation" means compensation under Division 4 of Part 3 (Compensation for non-economic loss).

(2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both:

(a) permanent loss compensation in respect of the injury; and (b) damages in respect of the injury from the employer liable to pay that compensation; but is required to elect whether to claim that permanent loss compensation or those damages.

(3) The person makes that election (or is taken to have made that election):

(a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury); or (b) by accepting payment of that permanent loss compensation or by the Compensation Court making an award in respect of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury.

(4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section. (5) If:

(a) a person elects to claim permanent loss compensation in respect of an injury; and (b) after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation; and (c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur, the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury.

(6) If the election is revoked the permanent loss compensation paid is not required to be repaid, except out of the damages recovered in accordance with section 151B. (7) If a liability to pay permanent loss compensation results from more than one injury to a worker, a reference in this section to permanent loss compensation is a reference to such part of that compensation as relates to the injury for which damages are recoverable." 12 Although there have been a number of changes to s151A since its inception, the only amendments that are of present significance are those dealing with election, in s151A(3). I now proceed to set out the legislative history of this provision, so far as is relevant. 13 In its original form, as inserted into the WCA by the Workers Compensation (Benefits) Amendment Act 1989 (No 133), Sch 1[1], s151A(3)(b) provided: "(3) The person makes that election: … (b) by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury." 14 By the Workers Compensation Legislation Amendment Act 1998 (No 85) Schedule 1[65], s151A(3)(b) was amended to take the form previously set out. For ease of comparison, I set it out again below: "(3) The person makes that election (or is taken to have made that election): … (b) by accepting payment of that permanent loss compensation or by the Compensation Court making an award in respect of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury."

The amended subsection commenced on 1 August 1998 and applied to injuries received before or after that date, but did not apply " in respect of awards made by the Compensation Court before that commencement or awards made by that Court in connection with proceedings instituted before that commencement ": Sch 1[104] inserting savings and transitional provisions into Sch 6, Pt 14, cl11 of the WCA. 15 Section 151A(3)(b) was amended again by the Workers Compensation Legislation Amendment Act 2000 (No 87), so as to commence on 2 April 2001: "(3) The person makes that election (or is taken to have made that election): … (b) by commencing proceedings in the Compensation Court to recover that permanent loss compensation or by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury."

It is common ground that those provisions do not apply. 16 Further transitional provisions were also inserted into Sch 6, Pt 14, cl 12 of the WCA: Workers Compensation Legislation Amendment Act 2000 (No 87) Sch 4[3]. These provide: " Election to claim compensation - 2000 amending Act (1) The amendments made to section 151A by the Workers Compensation Legislation Amendment Act 2000 apply in respect of injuries received before or after the commencement of those amendments, but do not apply in respect of the commencement of proceedings in the Compensation Court before that commencement. (2) In a case in which proceedings in the Compensation Court are commenced before the commencement of those amendments

(a) section 151A (3) (b) continues to apply as it was in force when the proceedings were commenced, and (b) section 151A (3) (b) is taken to have been amended by replacing the words "or by the Compensation Court making an award in respect of that permanent loss compensation" with the words "or by the Compensation Court awarding that permanent loss compensation (whether by award, interim award or order)" 17 It is common ground that, in relation to the award made by Commissioner Wright on 28 July 2000, those transitional provisions are not applicable. This is because the Act which introduced them only received assent in December 2000. The commencing date for these amendments was 2 April 2001. 18 In summary, then, the statutory progression between 1998 to 2000 (leaving aside the effect of transitional provisions) was that an election must be taken to be made preventing recovery of common law damages, by: (a) accepting payment of permanent loss compensation (1989) (b) (i) accepting payment of permanent loss compensation OR (ii) the Compensation Court making an award in respect of permanent loss compensation: (1998) (c) (i) accepting payment of permanent loss compensation OR (ii) commencing proceedings in the Compensation Court to recover permanent loss compensation: (2000) [emphasis added] 19 I consider below how this statutory progression may aid in the construction of s151A as it applied to the facts of this case.

SALIENT FACTS 20 The salient facts and procedural history relevant to this case are not relevantly in dispute.

The Compensation Court proceedings 21 On 10 April 1999, the claimant suffered injury in the course of his employment with Trazmet as a formwork carpenter. The precise circumstances in which he was injured are not presently relevant, although it appears that he slipped and fell awkwardly while working at a building site. 22 On 7 January 2000, the claimant commenced proceedings in the Compensation Court of NSW. In the Application for Determination, the claimant particularised his injury as "injury to back, right leg, neck, head, chest and left hand" and claimed weekly compensation for continuing total incapacity in the sum of $633.82 per week. On 10 April 2000, after obtaining advice from a Dr Benanziothe, the claimant's solicitors informed Trazmet that they were amending the Application for Determination so as to include claims for lump sums pursuant to ss66 and 67 WCA, being: (a) $8,000 in respect of a 20% permanent impairment of the neck; (b) $15,000 in respect of a 25% permanent impairment of the back; (c) $7,500 in respect of a 10% permanent loss of use of the right leg at or above the knee; (d) Section 67 lump sum compensation for pain and suffering being two-thirds of a most-extreme case. 23 On 28 July 2000, Commissioner Wright delivered judgment in the matter, making an award in favour of the claimant. In the course of that judgment, the Commissioner stated: "31. There is no dispute that the worker has injured his left thumb and I think that the medical evidence helps me to conclude that there has been a 3% loss of efficient use of the thumb due to work injury, as there has been scarring and some minor interference with its full and efficient use.

32. It is clear from the medical evidence that the worker had significant degenerative changes in the lower spine prior to the incident at work on 10 April 1999 when he fell awkwardly at work. …

37. There were a number of unsatisfactory aspects to the worker's evidence, as I have alluded to, and, as the injuries sustained by him are barely 15 months old, I am not satisfied of any permanency of any neck or back condition, or of any leg loss of use ." [emphasis added] 24 After concluding that an award of weekly compensation for partial incapacity to work was appropriate, the Commissioner again set out his conclusions under the heading "Findings": "41. The applicant worker sustained injury to the back, namely an aggravation of underlying degenerative change in the back, as a result of a fall at work, and that as a result of that injury he has been partially incapacitated for work from 29 July 1999 to date.

42. The worker injured his thumb in the fall and has sustained a 3% permanent loss of efficient use of that thumb. …

43. The Court is not satisfied that the worker has suffered any permanent injury to the neck or back at this time." 25 The Commissioner then made the award of weekly compensation of $150 together with a lump sum of $780 for partial loss of use of the left thumb. 26 I should add that given that award and these findings and the absence of any reference in the transcript to the thumb, it appears to be common ground that it can be inferred that in course of addresses the question of a claim for the 3% loss of efficient use of the thumb emerged, and Counsel for the worker said he would accept it.

The District Court proceedings 27 On 16 November 2001, the claimant commenced common law proceedings in the District Court of NSW, particularising his injuries and disabilities as follows: PARTICULARS OF INJURY OF INJURY (a) Injury to back. (b) Injury to neck. (c) Bruises, confusion and abrasions. (d) Injury to leg. (e) Injury to head. (f) Injury to chest. (g) Shock, anxiety and sequelae. PARTICULARS OF DISABILITIES (a) Chronic pain, discomfort and restriction of movement of the head. (b) Chronic pain, discomfort and restriction of movement of the neck. (c) Chronic pain, discomfort and restriction of movement of the back. (d) Chronic pain, discomfort and restriction of movement of the right leg. (e) Aggravation of pre-existing cervical degenerative changes. (f) Aggravation of pre-existing lumbar degenerative changes. (g) Annular tear of lumbar disc. (h) Anxiety and depression. 28 It is to be noted that no common law claim was made in respect of damage to the left thumb. New were the claims for "injury to head" and "injury to chest", along with "shock, anxiety and sequelae". The particulars add nothing to those new claims.

The first motion to dismiss 29 On 6 December 2002, Trazmet filed a Notice of Motion in the District Court seeking that the claimant's claim for damages relating to his back, neck and right leg be summarily dismissed, stayed or struck out. Trazmet relied upon s151A WCA (as applied to claims for damages commenced prior to 27 November 2001) to demonstrate that the claimant had made an election disentitling him from seeking common law damages, and that thus his claim should be struck out pursuant to the relevant provisions in the District Court Rules allowing a claim to be struck out in whole or in part if it discloses no reasonable cause of action or constitutes an abuse of process: DCR Pt 11A r3 and/or Pt 9 r17. 30 The motion came before Urquhart DCJ. Trazmet sought to demonstrate essentially that by claiming permanent loss compensation in the Compensation Court in respect of impairment to the back, neck and leg, the claimant had made an election for the purposes of s151A. First, Trazmet submitted that the amendments to s151A(3)(b) enacted by Schedule 4 of the Workers Compensation Legislation Amendment Act 2000 were applicable, such that it had merely to demonstrate that the claimant had made an election "by commencing proceedings in the Compensation Court.". Alternatively, Trazmet argued that even if those amendments did not apply so that it had to demonstrate that the election occurred "by the Compensation Court making an award in respect of that permanent loss compensation", then that section had been satisfied. Trazmet reasoned that the Compensation Court has made an "award" even where it has determined not to award a monetary sum for permanent loss compensation; that is, such a determination should be regarded as a quantifiable award of permanent loss compensation of zero. Third, Trazmet appealed to a broad and inclusive definition of "award" and submitted that the Commissioner's findings themselves constituted an award for the purposes of s151A. 31 I interpolate that it can readily be seen that Trazmet's object was to construe the old s151A in such a way that once a worker submitted a claim to the Compensation Court for determination, an election was made covering the whole loss claimed, occurring at the point the claim was determined. Thus, the 1998 version of s151A was sought to be construed so as to converge with the sense of the new 2000 version of s151A, the only difference being that in the former case the election took place at the end of the Compensation Court proceedings by way of award, though the award be zero, whereas in the latter it occurs at and by virtue of the commencement of those proceedings. 32 Urquhart DCJ rejected all of Trazmet's submissions. He considered that it was impermissible to avoid the savings and transitional provisions to the amending Act of 2000 so as to read the new s151A(3)(b) as deeming an election to occur by a person "having commenced prior to these amendments proceedings in the Compensation Court". Such a case, he held, was addressed precisely by those transitional provisions. Urquhart DCJ rejected the contention that a refusal to award permanent loss compensation was nevertheless an award of permanent loss compensation of zero. He did so, by reference to s151A(5), whose plain and ordinary meaning he regarded as showing that the revocation of an election is predicated upon that person having received a positive award of permanent loss compensation. The judge likewise rejected Trazmet's third contention in the absence of authority and on the basis that the legislature intended "award" to refer to a quantified amount rather than a mere finding. 33 An appeal from the decision of Urquhart DCJ was lodged by Trazmet, but was not ultimately pursued for reasons never completely explained.

The second motion 34 On 12 September 2003, Trazmet filed a further Notice of Motion seeking orders for leave to amend its defence and that the whole of the claimant's common law claim be summarily dismissed, stayed or struck out. It relied on the same statutory provisions as it had relied on before Urquhart DCJ in the first motion. The motion came before Maguire DCJ. 35 The claimant contended that the second motion should be struck out as an abuse of process as it was in effect a second application seeking the same relief as the first. Maguire DCJ rejected this contention, relying on Nominal Defendant v Manning (2000) 50 NSWLR 139. In that case, Williams DCJ had granted leave to a plaintiff to commence proceedings out of time. He did so notwithstanding that this was a second interlocutory application on the basis of evidence which could, if due diligence had been exercised, have been placed before the judge to whom the first application had been unsuccessfully made by the plaintiff. Maguire DCJ in the present case noted that the motion before him sought different relief to the motion before Urquhart DCJ. This was because it sought dismissal of the whole rather than merely part of the Statement of Claim and, I add, was on the basis of s151A WCA. Maguire DCJ was asked to consider a further proposition. It was that the whole of the action be dismissed because the Commissioner's award relating to the thumb constituted an election. He noted that this proposition had not been put to Urquhart DCJ. He considered that this was a "fresh argument" which was analogous to the issue in Manning (supra). Therefore, since the debate before him did not canvass the same issues as before Urquhart DCJ, or involve mere repetition of the first motion, Maguire DCJ determined in the exercise of his discretion that Trazmet's motion should not be dismissed as an abuse of process. 36 Upon the merits of the motion, Trazmet submitted that the Commissioner's award of permanent loss compensation for the thumb constituted "the Compensation Court making an award in respect of that permanent loss compensation" so as to deprive the claimant of any further entitlement to damages for any "injury" arising out of the incident complained of. This submission was evidently based upon a construction of the word "injury". It sought, for the purposes of s151A, to equate "injury" in this context with the concept of "accident" or "incident". Put shortly, it was Trazmet's contention that having regard to the terms of s151A(2), the time for election mandated by s151A(3)(b) is "the Compensation Court making an award in respect of that permanent loss compensation" in respect of an injury. Thus one injury (in the sense of incident) might give rise to more than one type of compensable loss within the table of disabilities referred to in s66 WCA in respect of which permanent loss compensation could be awarded. According to Trazmet, the election occurs as soon as the Compensation Court makes an award in respect of any permanent loss compensation, and extends to all damage arising out of the "injury" regardless of whether it was the subject of a particular finding or award. 37 Maguire DCJ accepted Trazmet's submissions, holding that the fact that the Commissioner's decision did not include permanent loss compensation in respect of all permanent losses asserted is irrelevant once there is an award for permanent loss compensation for any permanent loss claimed. In this regard, Maguire DCJ relied upon the decision of the Court of Appeal in Corcoran v Tyre Marketers Australia [2001] NSWCA 300. In that case, the plaintiff had accepted a settlement in the Compensation Court of $45,000 in a claim referring to injury to his back, legs, and arm. Subsequently his medical condition worsened. He sought to commence proceedings at common law alleging, inter alia, injury to his neck. Mason P and Grove J held that his election as constituted by the settlement extended to his neck injury, and stated, at [94]: "The Compensation Court is not a court of strict pleading. As a matter of historical fact the election was intended to encompass the totality of disability stemming from the workplace injury. Absence of a specific award for neck pain is explicable by the fact that no one saw it as a distinct problem." 38 Maguire DCJ set out this passage with some emphasis. He took it as the basis for concluding that "injury involves the totality of the physical and mental consequences flowing from the occurrence which enlivened a common law claim." In consequence any election constituted by the award encompassed all damage related to various parts of the body regardless of whether they were the subject of an award. He thereby drew no distinction between (a) damage related to one part of the body, such as the spine, which triggers damage to another part, say the neck, and (b) a series of independent sites of damage caused not by interaction one upon the other, but by the independent effect of the workplace incident itself. 39 Maguire DCJ therefore made the orders sought by Trazmet, against which the claimants now appeal.

THE APPEAL Draft Notice of Appeal 40 The claimants have lodged a draft notice of appeal. Apart from Grounds 1 and 2 which formally challenge the orders made by Maguire DCJ, the other grounds are broadly referable to the substantive and procedural issues identified earlier. 41 The substantive issue concerns whether Maguire DCJ was correct in finding that the Commissioner's award in respect of loss of permanent use of the claimant's left thumb constituted an election pursuant to s151A, so disentitling him from seeking common law damages in respect of what the claimant says are other injuries sustained to his back, neck and leg (Ground 7). Directed to this issue are Grounds 8, 9 and 10 of the Draft Notice of Appeal. The claimants contend that the construction adopted by Maguire DCJ of "injury" (in the sense of 'incident') was in error and that he should have found that, in the context of s151A, there could be more than one injury as a result of a workplace accident (Ground 8) with, presumably, the potential for multiple elections, one for each injury (or more accurately item of injury, eg neck). The claimants also contend that Maguire DCJ erred in not finding that injury in the context of s151A of the Workers Compensation Act applied to more than one injury and the election provisions did not apply where there were separate or multiple injuries from the same accident but no positive permanent loss compensation award in respect of those injuries (Ground 9). In that regard, the claimants also contend that Maguire DCJ erred in not distinguishing Corcoran v Tyre Marketers Australia (supra) from the facts in this case on the basis that in that case the neck 'injury' was part of the disability from the injury to the left arm and was not a separate injury arising out of the accident (Ground 10); see above. 42 The procedural issue concerns whether Maguire DCJ erred in not finding Trazmet's motion to be an abuse of process (Ground 3). Directed to this issue are Grounds 4, 5 and 6 of the Draft Notice of Appeal. The claimants contend that Maguire DCJ erred in applying Nominal Defendant v Manning. They contend (Ground 4) that it is distinguishable, being concerned with a second application based on fresh evidence rather than, as here, a new argument based on the same evidence. The claimants also contend that Maguire DCJ erred in not finding that the Notice of Motion before him involved the same issues canvassed before Urquhart DCJ (Ground 5, as I apprehend the claimants intended it to read).

Draft Notice of Contention 43 Trazmet supports the decision of Maguire DCJ, but has filed a draft notice of contention. It will only be strictly necessary to consider the additional supporting grounds raised by the notice of contention, if the claimant's grounds of appeal are well founded. 44 First, in relation to the substantive question, Trazmet supports the construction of "injury" adopted by Maguire DCJ. But by its Notice of Contention it puts forward in the alternative the enlarged meaning of "award" it had put to Urquhart DCJ. It thereby contends again that the finding by the Commissioner of a lack of permanency in respect of losses in relation to the claimant's back, neck and right leg constituted an "award", albeit of nil amount, made by that Court for the purpose of s151A, so constituting an election. 45 Second, in relation to the procedural issue Trazmet submits that the claimants have identified no error sufficient to set aside Maguire DCJ's discretionary decision to entertain the motion, in the sense referred to in House v The King (1936) 55 CLR 499. It further contends that Maguire DCJ's discretionary decision not to strike out the motion as an abuse of process should also be affirmed on a number of additional grounds: (a) res judicata does not apply to interlocutory applications so that it is of no moment that the point taken below could have been taken before Urquhart DCJ, (b) the relief sought below was a logical result of the defence of election under s151A Workers Compensation Act sought to be raised in the proposed amended defence; (c) there was no collateral challenge to the prior decision of Urquhart DCJ nor any ulterior purpose in bringing the proceedings; (d) The case was not one of re-argument of a point of law fully argued in a prior application; and (e) the reasoning of Foster AJA in Manning would support the conclusion of Maguire DCJ.

DISPOSITION Was there an abuse of process? 46 The threshold question is whether the bringing of proceedings before Maguire DCJ should have been precluded as an abuse of process. Maguire DCJ concluded in the exercise of his discretion that he did not "see the instant application as an abuse of process. The debate before me did not involve the same issues canvassed before Urquhart DCJ and does not constitute a backdoor de facto appeal against his decision." 47 The earlier application to Urquhart DCJ was indubitably an interlocutory one. The Notice of Motion which Trazmet filed on 6 December 2002 sought that so much of the claim as was in relation to the back, neck and right leg be summarily dismissed, stayed or struck out. That would still have left a small residual claim, namely, for injury to the chest, coupled with shock, anxiety and sequelae, as well as in relation to the injury to the thumb, which gave rise to the award by Commissioner Wright of $780. 48 Accordingly, it must follow that the conventional estoppels including Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) could have no bearing here. That leaves only the so-called extended doctrine which confers a broad discretion to prevent abuse of process. 49 The short answer to the claimant's contention that Maguire DCJ's discretion miscarried in the limited sense of House v the King (supra) is that there is no identification of any application of a wrong principle by the claimants, nor of a relevant consideration ignored or an irrelevant consideration taken into account; nor is the result so unreasonable or unfair that error of that kind could be inferred. 50 The forensic context is that Trazmet, as I have explained, first sought before Urquhart DCJ on 6 December 2002 to strike out part only, being the major part, of the claimant's Statement of Claim doing so by recourse to the District Court Rules dealing with frivolous proceedings or embarrassing ones. Trazmet then on 12 September 2003 sought to amend its defence for the first time, invoking s151A(3)(b) in order to have the whole of the claimant's claim struck out, by reason of his having made a prior election in terms of that statutory provision. 51 Thus while the Notice of Motion before Maguire DCJ was not based upon fresh evidence, the ground relied upon was entirely new and could not give rise to an order inconsistent with the earlier judgment (Hunter v Chief Constable of the West Midlands [1982] AC 529 at 541) nor even such as may "tarnish" it (Giannarelli v Wraith (1988) 165 CLR 543 at 573-4 per Wilson J). The rule against collateral attack could not be invoked, as the proceedings before Maguire DCJ had no potential to undermine the finality of the earlier judgment of Urquhart DCJ; cf Rogers v R (1994) 181 CLR 251 at 273-4 per Deane and Gaudron JJ, Mason CJ concurring at 255. 52 Essentially, the claimant sought to argue that it was unreasonable in the Anshun sense for Trazmet to have failed to raise the s151A question of law in the earlier proceedings before Urquhart DCJ. That is essentially an Anshun argument sought to be applied to an interlocutory proceeding so as to invoke the extended doctrine of what constitutes an abuse of process. That extended doctrine was described in Walton v Gardiner (1992-93) 177 CLR 378 at 393 by Mason CJ, Deane and Dawson JJ in these terms: "Proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings." 53 It could hardly be said that this was litigating anew a case which had already been disposed of by earlier proceedings. Nor can this case be described as coming within the categories of abuse of process as formulated by Mason CJ in Rogers v R (supra) at 286-7: "Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute." 54 While it may have been more economic in terms of costs for the s151A argument to have been raised before Urquhart DCJ, I would not wish to interfere with what was done with regard to costs below. I infer, though this is not entirely clear, that costs below were reserved. 55 The claimant, therefore, has not demonstrated any basis for upsetting the exercise of discretion by Maguire DCJ in failing to dismiss Trazmet's application as an abuse of process, even if it be the case that the first application before Urquhart DCJ would in a practical sense have dealt with the core of the claimant's original compensation claim. 56 Next, I should refer briefly to Manning as it was relied upon by Maguire DCJ. The claimant relies on the absence of any fresh evidence supporting the second application. The claimant contends that its absence necessarily renders that second application an abuse of process. The majority judgment in Manning does warn that a second application may be treated as an abuse of process. But it declines to follow the judgment of Hayne JA in DA Christie Pty Ltd v Baker [1996] 2 VR 58. The following passage from the judgment of Heydon JA in Manning makes clear that while the risk of a second application being treated as an abuse of process remains very considerable, the trial judge retains a discretion to determine otherwise. The fact that an applicant makes a second interlocutory application does not render it automatically an abuse of process, saved only when the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before. Absence of those saving considerations certainly places the applicant at greater risk of an adverse exercise of that discretion, but the discretion still remains to decide otherwise. Thus, Heydon JA observed: "[71] For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in D A Christie Pty Ltd v Baker that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before. It is not necessary, and it is probably undesirable, to seek to define a test capable of application to all cases involving statutory extensions of time to start proceedings, or even all cases arising out of s52(4) of the Motor Accidents Act 1988 (NSW). The Nominal Defendant did not submit that if the test contended for did not exist, the conduct of the respondent constituted an abuse of process on any other basis.

[72] Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 602-603 - the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid." 57 I should add that insofar as criticism could be made at all of Trazmet, that criticism falls far short of any notion of judge-shopping, the risk of conflicting decisions or otherwise damaging public confidence in the integrity of judicial decisions. 58 The claimant's argument was that it was an error of law to treat a fresh legal argument as fresh evidence. The fallacy in that argument is that it presupposes that only fresh evidence can justify a second application or the exercise of discretion permitting it. 59 The other supposed error was to point to the differing relief sought in the two applications. Again, that argument must fail as it is based on a false assumption, namely, that it is sufficient to point to differing relief in successive applications to establish abuse of process. However, it is a relevant consideration that the nature of the applications differed and the trial judge was not in error in choosing to rely upon that consideration in favour of permitting the second application to be made. 60 Finally, the claimant sought to put its arguments on an alternative basis. He submitted that when Trazmet asserted its rights before Urquhart DCJ, it must be taken to have waived its right to claim that the thumb award was an election which defeated the whole common law claim as then filed. The argument proceeds that as the election provisions in the WCA were for the benefit of employers and their insurers, they can waive reliance on those provisions if they wish (North Broken Hill Limited v Vockins (1999) 19 NSWCCR 193 and McHugh J in the Commonwealth v Verwayen (1990) 170 CLR 394 at 497). 61 The re-formulation of the argument in terms of waiver does not advance it further. There is nothing to indicate that Trazmet, by making the forensic choices it did, intended to waive its rights to claim that the thumb award was an election. Nor does the statute deem such an election to have been made. Indeed it would be equally illogical to say that the claimant for its part had waived its right to put the waiver argument because that waiver argument was not put earlier to Maguire DCJ.

Section 151A(3) WCA: Was an election made? 62 I have earlier quoted the applicable section 151A and in particular subclause (3)(b). A brief exegesis may be helpful. 63 Section 151A(3)(a) deals with an election in the opposite direction. It deals with the situation where proceedings are commenced in a court to recover common law damages, or by accepting payment of those damages. It will be apparent that when the election for common law damages is so taken to be made, the relevant provisions of s151A(3)(a) are not a simple reciprocal of the provisions deeming election to be made for statutory compensation. Thus election in respect of common law damages is taken to have occurred merely by commencing proceedings in a court to recover those damages. Whereas, in the version of s151A(3)(b) following the 1998 amendment and before the 2001 amendments, the test is not satisfied until the Compensation Court "[makes] an award in respect of that permanent loss compensation". 64 The mere commencement of proceedings in the Compensation Court thus did not suffice, until the later 2001 amendments. 65 Further significance attaches to the use of the words "in respect of" before "the injury" in s151A(2)(a) and before the words "that permanent loss compensation" in s151A(3)(b). The combination of the two provisions is that s151A(2) precludes an entitlement to "permanent loss compensation in respect of the injury" and requires an election between it and common law damages. Then s151A(3)(b) takes that election to have been made, relevantly, "by the Compensation Court making an award in respect of that permanent loss compensation". 66 The significance of the words "in respect of" immediately before "the permanent loss compensation" is that these words, certainly in the workers' compensation context, undoubtedly have a wide meaning; the Workers' Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642 at 653. That case, as well as the later case of Technical Products Pty Limited v State Government Insurance Office (Queensland) [1988] 167 CLR 45, recognises that the meaning of the words "in respect of" "commonly reflect the context in which they appear" per Brennan, Deane and Gaudron JJ at 47. In that case what was under consideration was the nexus between legal liability and a motor vehicle under s31 of the Motor Vehicles Insurance Act 1936 (Qld), calling for "some discernable and rational link between the basis of legal liability and the particular motor vehicle". 67 In looking here to the nexus between an award and the permanent loss compensation allowed, the question is whether each item of claim must be looked at separately or whether compensation can be properly considered to be in respect of all the items claimed even though the permanent loss compensation was for one item only, namely, the partial loss of use of a thumb. 68 Here there is an important element of context, namely, the statutory context constituted by the then version of s66 WCA. Section 66(1) provides: "A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer, by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table." 69 Section 66(2) places a cap of $121,000 upon a worker who has suffered more than one of the losses mentioned in the Table. 70 Significantly, the Table to the Division lists a number of distinct injuries. 71 This Table, repealed by the Workers' Compensation Legislation Amendment Act 2001 with effect from 1 January 2002 appeared in s73 WCA. The Table lists under "Nature of Injury" specific injuries such as "speech loss" with a percentage of the maximum amount payable in the right-hand column. 72 At first sight, this would indicate that the reference to "permanent loss compensation in respect of the injury" in s151A(2)(a) and the corresponding words in s151A(3)(b) in relation to an award "in respect of that permanent loss compensation" would suggest that "injury" was to be read distributively in terms of each item of injury rather than refer to the totality of the injurious consequences from the workplace accident. 73 However, that interpretation involves both a degree of absurdity and some dissonance with s151A(5). The absurdity is that it would mean, as pointed out by Maguire DCJ, that a plaintiff who suffered harm in a workplace accident would be entitled to bring a series of actions for common law damages nominating a different consequence of his accident in serial fashion. That would thereby allow a series of different elections for each site of injury, with the possible exception of those injuries that are the consequence of other injuries resulting directly from the workplace accident. It is difficult to discern any rational legislative purpose in such complexity. This is especially when the legislation is clearly directed to a simple legislative scheme requiring the worker to choose which compensatory regime he or she wishes to pursue, with an election being deemed to have been made by reference to the course chosen. 74 Moreover, when it came to the deemed election in s151A(3)(a), the statutory provision clearly does not contemplate such multiple proceedings in split fashion when it comes to proceedings to recover "those damages", being the common law damages in respect of the injury. 75 Moreover, s151A(5) provides for what happens if, after the election is made, "the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation". 76 In that context, clearly enough one looks at the person's medical condition as a whole with material deterioration being in respect of all items of injury, without distinction between injuries that are simply the result of the original workplace accident or injuries that are brought about by other injuries that were the result of that workplace accident such as the ripple effect of an injury to the spine. Had s66(1) WCA the effect of requiring an unbundling (as it were) of each individual item of injury for the purposes of election, one would expect a similar unbundling in the context of "further material deterioration"; yet that is absent. 77 This is a convenient point to consider Corcoran v Tyre Marketers Australia. That was a material deterioration case. As I have earlier explained, it involved a settlement in the Compensation Court of $45,000 in a claim referring to injury to the worker's back, legs and arm. Undoubtedly, the injuries did have effect on one another. It was possible to relate the neck pain to the injuries claimed, in particular one may assume the back. Maguire DCJ relied on what Mason P and Grove J said at [94], which I have recorded in [37] above. 78 Thus as the claimant's contend, this was a case where factually one workplace injury caused another, though ultimately traceable back to the workplace accident itself. That being the factual position, the principle as stated in Corcoran made no such distinction. It would include under the "the totality of disability" both kinds of injury, whether self-standing or the result of other injuries. The unbundling that s66(1) of the old WCA mandates is simply a scaling provision for quantification purposes. Thus the percentage of the maximum amount payable specified for each item is the sum in proportion to which the amount recoverable is to be scaled. For example, in the case of claims for loss of power of speech, the proportion is scaled against 60% of the maximum amount payable which maximum amount is payable only in "a most extreme case". Ultimately the permanent loss compensation is the product of the application of that scale bringing into account each item claimed. This if anything reinforces the conclusion that when "injury" as referred to in s151A(2) incorporates the definition of "injury" in s4, namely, "personal injury arising out of or in the course of employment", it is used in a holistic sense; that is to say, encompassing all the items claimed so as to embrace "the totality of the physical and mental consequences flowing from the occurrence" which enlivened the relevant claim.

Conclusion 79 The claimant made his election in respect of the totality of his claims when he was awarded $780. 80 It is therefore unnecessary for me to consider the Notice of Contention. Were the matter to be considered under the current legislation the issue would be moot since merely by commencing proceedings in the Compensation Court an election is taken to have been made. I should add that whilst "award" is not defined in the workers' compensation legislation, the Compensation Court Act 1984 (repealed), for the purpose of Pt 4 of that Act dealing with appeals, defined "award" as including "interim award, order, decision, determination, ruling and direction". 81 Moreover "decision" was defined for the purpose of s17 of the repealed Act as including "award, order, determination, ruling and direction". The opponent relies upon those definitions as indicating that the concept of the Compensation Court making an "award" is a broad one. 82 Thus while there are arguments of some plausibility in favour of construing "award" as including not only the award of a positive sum but the denial of any sum, I consider that that question is best dealt with as and when it directly arises for decision.

ORDERS 83 I would propose the following orders: (1) Grant leave to appeal, and direct that the Notice of Appeal be filed within seven days. (2) Appeal dismissed, with the claimant to pay the opponent's costs of the summons for leave to appeal and the appeal. 84 TOBIAS JA: I agree with Santow JA. **********

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