Plaintiff v First Defendant

SUMMARY JUDGMENT - ss 62 and 63 of the Civil Procedure Act 2010 (Vic) - No real prospect of success - Worker commenced proceeding without satisfying s 327 of the WIRC Act - Proceeding dismissed.

1 In this proceeding, the plaintiff seeks damages in respect of injuries he suffered in a workplace accident in Victoria on 8 May 2018.

2 By summons filed on 3 December 2024, the defendants seek summary judgment on the ground that the plaintiff has not obtained a serious injury certificate in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 ('WIRC Act') and is, therefore, not entitled to bring a proceeding for common law damages in Victoria.

3 The plaintiff resists the summary judgment application and contends that the defendants' asserted construction of s 326 of the WIRC Act is incorrect, and that he does not require a serious injury certificate in order to commence this proceeding.

4 The background facts are not in dispute, and are as follows.

(a) The first defendant corporation provides roof-tiling products and services to the building and construction industry. The second defendant corporation was the principal contractor of a residential construction project in Mount Duneed in Victoria ('Premises'). As part of that project, the second defendant entered a contract with the first defendant to provide and install roofing tiles and battens at the Premises.

(b) The first defendant subcontracted the work of installing the roofing tiles and battens to Mr Kevin Evans, who in turn employed the plaintiff to work with him on the job.

(c) Mr Evans's company operates from South Australia. The plaintiff ordinarily worked in South Australia but travelled to Victoria to complete this particular work.

(d) On 8 May 2018, the plaintiff alleges he suffered an injury in the course of his employment when he fell from the roof of the Premises.

(e) The plaintiff made a workers' compensation claim under the Return to Work Act 2014 (SA), which was accepted. He received compensation from the South Australian statutory insurer.

(f) On 8 March 2023, the plaintiff filed a writ in this Court seeking common law damages. The writ named Mr Evans as the first defendant, however, it was never served on the defendants.

(g) On 30 January 2024, the plaintiff filed an amended writ which removed Mr Evans as a defendant. In the proceeding, the plaintiff claims damages from the current defendants, who are non-employer parties, for non-economic loss in accordance with Part VBA of the Wrongs Act 1958.

5 At common law, the substantive law that governs an injured worker's entitlement to seek damages is the law of the place where the wrong was committed. That common law rule may be modified by statute. Part 7 of the WIRC Act, entitled 'Actions and proceedings for damages', includes provisions relating to the choice of law that modify the common law rule if the pre-conditions to their operation are satisfied.

6 The relevant sections in Part 7, being ss 318 and 319, operate in this case as follows:

(a) with the pre-condition in s 318(1) satisfied, s 319 identifies the substantive law that applies to any damages claim brought by the plaintiff against his employer (Mr Evans) as the law of South Australia, being the State with which the plaintiff's employment was connected and the State administering the workers' compensation scheme from which he recovered his statutory benefits; and

(b) as one of the two pre-conditions in s 318(2) is not satisfied, the substantive law that applies to the plaintiff's claims against non-employer parties, that is, the first and second defendants, is not modified by s 319 and, accordingly, is determined by the common law rule to be the substantive law as applicable in Victoria.

These provisions distinguish between two classes of defendants, namely employers and non-employers. As noted, even if all claims were to be brought in the same proceeding, the plaintiff's claim against his employer would be governed by the substantive law of South Australia, whereas his claims for damages against the first and second defendants, both non-employer parties, would be governed by the substantive law of Victoria.

7 There is no dispute between the parties regarding the choice of law provisions which apply in this case. The Court of Appeal's construction of the antecedent choice of law provisions in the Accident Compensation Act 1985 ('ACA') in Di Paolo v Salta Constructions Pty Ltd[1] serves to highlight the potential relevance, to the statutory construction task, of the policy choices of the Victorian Parliament in balancing the interests of workers and businesses in relation to workplace injuries compensation and damages. First, the Court of Appeal held that the mischief sought to be remedied by the Parliament in introducing, in 2003, provisions to override the common law choice of law rules into the ACA (which are preserved in the WIRC Act) was to obviate the need for a worker to navigate different laws in respect of their claims against an employer where the worker's employment had a connection with Victoria. However, the Court of Appeal described the modifications in respect of claims against a non-employer as 'more confined',[2] having regard to the reasonable expectations of non-employers to have the law of their jurisdiction apply to them.[3] Second, the Court of Appeal ultimately dismissed the appeal because the appellant's claims against non-employer defendants, governed by the substantive law of Western Australia, were statute barred, when they would not have been in Victoria, being the State to which the employment was connected. In this regard, the Court of Appeal noted that:

commercial organisations are entitled to assume that the exposure of their businesses to legal liability is ordinarily governed by the law of the jurisdiction in which they conduct their business. The cost and uncertainty of making such an organisation potentially subject to claims within a limitation period of a jurisdiction with which its business operations and products have no connection is a matter that the legislatures may well have balanced against any detriment to a worker arising from the non-application of the limitation period of the jurisdiction with which his or her employment has a connection.[4]

8 The legislative framework established by Part 7 of the WIRC Act applies to proceedings for common law damages for injuries arising out of, or in the course of, employment after 1 July 2014 against both employer and non-employer tortfeasors.

9 The provision of the WIRC Act at the centre of this dispute is s 326. That provision, and related ss 327 and 328, are extracted below.

Section 326 Actions for damages

A worker who is, or the dependants of a worker who are, or may be, entitled to compensation in respect of an injury arising out of, or in the course of, or due to the nature of, employment must not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss except -

(a) if the injury arises from a transport accident -

(i) in accordance with the Transport Accident Act 1986 and sections 343 and 347(1) of this Act; or

(ii) in accordance with Part III of the Wrongs Act 1958, subject to and in accordance with the Transport Accident Act 1986 and section 366(7)(a) and (b) of this Act; or

(b) in proceedings, in accordance with sections 343 and 347(1), to which the employer is not a party if -

(i) by reason of section 46(1), the injury is deemed to have arisen out of, or in the course of, employment; and

(ii) the worker's place of employment is a fixed place of employment; and

(iii) the injury did not occur while the worker was present at that fixed place of employment; or

(c) as permitted by and in accordance with this Division, Division 3 or section 366.

Section 327 Actions for damages - serious injury

Subject to this Division, 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 if the injury is a serious injury.

Section 328 Proceedings under this Division

(1) Subject to subsection (3), a worker may not bring proceedings in accordance with this Division unless -

(a) a determination of the degree of impairment of the worker has been made under Division 4 of Part 5 of this Act or under section 104B of the Accident Compensation Act 1985 and the worker has made an application under subsection (2) of this section; or

(b) subject to any directions given by the Minister under section 352, the worker elects to make an application under subsection (2) on the ground that the worker has a serious injury.

10 These provisions establish what is often described as the 'serious injury gateway' or 'serious injury threshold' for an injured worker to recover common law damages in Victoria. Essentially, s 326 conditionally extinguishes the common law rights of an injured worker to recover damages.[5] Those rights are then restored by s 327 where the injured worker has suffered a 'serious injury'. The requirement to meet the serious injury threshold in order to recover common law damages is often described as 'going' or 'passing' through ' the serious injury gateway'. Without descending into any detail, there are other substantive provisions in Part 7 of the WIRC Act that further modify the common law by, amongst other things, restricting the types of damages that can be claimed in a proceeding and modifying the manner of calculation of such damages. Claims for common law damages brought under Part 7 of the WIRC Act are also subject to a six-year time limit.[6]

11 The parties agree that the plaintiff is a 'worker' who suffered his injury in the course of his employment on 8 May 2018. Where they disagree is whether the plaintiff is a worker 'who is...or may be, entitled to compensation' in respect of his injury within the meaning of s 326 of the WIRC Act, and whether, as a consequence, in order to pursue his common law rights to damages in this proceeding, he is required to proceed through the serious injury gateway.

12 Their competing contentions with respect to the construction of s 326 are as follows.

(a) The construction favoured by the defendants is that, in so far as s 326 refers to a worker being 'entitled to compensation', the word 'compensation' means any entitlement to workers' compensation - that is, in any jurisdiction and under any regime. They accordingly submit that given the plaintiff has an entitlement to (and has received) 'compensation' under the Return to Work Act 2014 (SA), being the South Australian workers' compensation regime, his common law rights to recover damages in Victoria have been conditionally extinguished by s 326. They submit, therefore, that he must demonstrate serious injury for the purposes of s 327 in order to pursue this proceeding for damages.

(b) Conversely, the construction favoured by the plaintiff is that, in so far as s 326 refers to a worker being 'entitled to compensation', the word 'compensation' means an entitlement to compensation 'under or in accordance with the WIRC Act'.[7] The plaintiff submits that he has no entitlement to compensation under the WIRC Act because his entitlement is under the South Australian scheme and, consequently, his common law rights are not conditionally extinguished by the operation of s 326. He submits that he does not need to satisfy the serious injury requirement in s 327 to pursue his common law damages claim in Victoria.[8]

13 Whether the plaintiff's claims in this proceeding have a real, as opposed to fanciful, prospect of success[9] depends entirely on the determination of the correct construction of s 326. If the plaintiff requires a serious injury certificate, which he has not obtained, he will have commenced a proceeding without having a right to do so.

14 The following principles of statutory construction apply to this case.

(a) The starting point for ascertaining the meaning of a statutory provision is the text of the provision, considered in light of its context and purpose.[10] Where the text, read in its context, permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each of those meanings with the scheme of the statute and its identified objects or policies.[11] This purposive approach may prefer the broader meaning of the text over its ordinary or grammatical meaning where that will give effect to the statutory purpose.

(b) The language which has actually been employed in the text of the legislation is the surest guide to legislative intention.[12] Historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text. However, the meaning of the text may require consideration of the context, in particular, the mischief it is seeking to remedy.[13]

(c) A construction which adds words to the statute is a matter of judgment as to the degree to which, absent the addition, the object of the provision might be defeated. A construction which fills gaps or is too much at variance with the language in fact used by the legislature is to be avoided.[14]

(d) The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, the legal meaning will correspond with the grammatical meaning of the provision. However, the context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[15]

(e) The Court should avoid a construction that creates absurd, unreasonable or anomalous consequences only where it is clear that the legislature could not have intended such an operation of the statute.[16]

15 In Dollisson, the majority of the New South Wales Court of Appeal (Bell ACJ, Macfarlan JA agreeing) construed the word 'compensation' in s 134AB(1) of the ACA, which is the antecedent provision to s 326 of the WIRC Act, as meaning an entitlement to compensation under the ACA, despite those words not being present in the section. I was assured by Counsel at the hearing that there is no Victorian superior court decision which has in the relevant sense considered the construction of 'compensation' in s 326 of the WIRC Act, or its antecedent in the ACA. Accordingly, in this case, the plaintiff urged me to follow the majority reasoning in Dollisson, albeit accepting, correctly, that the decision is not binding on this Court. Conversely, the defendants contended that the majority judgment 'is wrong',[18] and instead urged me to accept and follow the dissenting reasoning of Emmett AJA.

16 To simply accept and apply the reasoning of any of the justices of the NSW Court of Appeal in Dollisson has the attraction of simplicity. However, such an approach might invite error for failing to consider the text of the provisions in the distinct context of the WIRC Act which, despite re-enacting the provisions of the ACA, has been drafted using a different and more logical structure,[19] and to simplify and streamline the provisions,[20] remove ambiguities, clarify the intention of various provisions and correct a number of drafting anomalies.[21] That said, conducting an independent statutory construction exercise to ascertain the meaning of 'compensation' in s 326 of the WIRC Act does not preclude reaching the same result as that reached in Dollisson.

The Text, Context and Purpose - s 326 of the WIRC Act

17 Section 326 of the WIRC Act is located in Part 7 ('Actions and proceedings for damages'), Division 2 ('Actions for damages'), and is itself headed 'Actions for damages'. The section:

(a) identifies the persons to whom it applies by the words:

[a] worker who is, or the dependants of a worker who are, or may be, entitled to compensation in respect of an injury arising out of, or in the course of, or due to the nature of, employment...

(b) extinguishes the common law rights to recover damages for a relevant injury by the words:

must not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss...

(c) in using the word 'except' followed by the conditions in subsections (a) to (c), conditions that extinguishment by reference to the criteria that must be satisfied for those common law rights to survive.

The word 'compensation' as used in s 326 is not defined in the WIRC Act. The only words appearing in the text of the section which expressly confine its meaning are those that follow it, namely that it must be compensation 'in respect of an injury arising out of, or in the course of, or due to the nature of, employment'. In other words, the compensation must be for a workplace injury.

18 The defendants submit that the word 'compensation' in s 326 should take its natural and ordinary meaning, such that it refers to any compensation for a workplace injury, which would include compensation payable for such injury under the workers' compensation schemes of other states. Conversely, the plaintiff contends that it should be construed to mean 'compensation under the WIRC Act', even though those words are absent from the text of the section.

19 The defendants submit that the purpose of the WIRC Act is to:

(a) create a comprehensive no-fault statutory benefits scheme for injured Victorian workers; and

(b) curtail an injured worker's common law rights to recover damages other than where they are seriously injured, whilst also limiting the quantum of damages that may be recovered and reducing costs.

They submit this purpose reflects the policy objectives of the legislature in two respects. Firstly, in ensuring that the health and safety of Victorian workers is improved and, where they are injured, that they are appropriately and expeditiously compensated. Secondly, in containing the burden of common-law claims for workplace injuries on Victorian businesses and the community. In support, the defendants cite the express objectives in s 10 of the WIRC Act and the second reading speech that introduced the antecedent provision to s 326 as an amendment to the ACA. Those amendments restored a worker's common law rights to sue for damages, at least for the seriously injured, following their complete abrogation in 1997. The pertinent part of that speech for present purposes is as follows:

The commitment of this government to restore common-law rights to seriously injured workers has an equal commitment to ensure that the costs of the restoration of common-law rights are confined and the number of common-law claims and the cost of those claims can be actuarially measured in a reasonably predictable manner...[22]

This second reading speech assists in identifying the mischief that the antecedent provision (and because it has been re-enacted in relevantly identical terms, s 326 itself) was intended to remedy, that is, to restore limited common law rights in a way that confined the number and the costs of claims that could be pursued to provide greater certainty to businesses and the community.

20 The defendants submit that their construction of the word 'compensation' in s 326 works coherently with this purpose of the WIRC Act in restoring and protecting the common law rights of the most seriously injured workers (no matter where they are employed), but also simultaneously confining the costs and regulating the burden on Victorian businesses of that restoration. They say this intention is manifest in the omission of the words 'under the WIRC Act' or similar words from s 326. They also contend that the plaintiff's interpretation would mean that the extent of the restoration of an injured worker's common law rights was intended to be differentiated by their place of employment, rather than by the place of occurrence of the tort. They say the Parliament could not have intended the result that a worker employed in another state would have more extensive rights to pursue Victorian businesses for injuries sustained in Victoria than Victorian workers because that would undermine the related objective of reducing the burden on Victorian businesses, which was predicated on there being only a limited restoration of common law rights. Companies such as the defendants, they submit, should be entitled to assume that their exposure to liability for workplace injuries is regulated by, and limited in accordance with, the law of the jurisdiction in which they conduct their businesses, and is not potentially enlarged by reason of the fact that a worker is (possibly unbeknownst to them) employed in another state.

21 The defendants point to the use of the words 'under this Act' or similar qualifications after the word 'compensation' elsewhere in the WIRC Act as being consistent with the deliberate omission of those words from s 326. Of particular significance is the use of the words 'under this Act' in other provisions within Part 7.[23] The defendants also identify other parts of the WIRC Act where the legislature has chosen to qualify the word 'compensation' in some other way, including, amongst others:

(a) references in different Parts of the WIRC Act to compensation 'under this Act';[24]

(b) references to compensation 'in accordance with',[25] 'in the form of',[26] 'under the laws of a place other than this State',[27] and 'under the statutory workers compensation scheme of a State.'[28]

Given no similar qualification is used in s 326, the defendants submit that, far from correcting a simple, grammatical drafting error, the plaintiff seeks to add words to s 326 to an unacceptable degree in order to fill gaps it cannot be safely assumed the legislature did not intend.

22 The plaintiff submits that his construction of 'compensation' as meaning 'compensation under the WIRC Act' does not involve the addition of any words. The plaintiff relies on the majority's rejection, in Dollisson, of the argument that the Victorian parliament deliberately omitted the words 'under the ACA' from s 134AB(1) of the ACA, to undermine the defendants' contentions as described above. The reasons of Bell ACJ state:

A review of the ACA, including its history and shifting policy underpinnings, makes it tolerably clear, in my opinion, that the Victorian legislature's failure to use the expression "under the Act" to qualify the reference to "compensation" in s 134AB(1) was not deliberate, and was certainly not designed to preclude, limit or condition the recovery of third party damages by a worker who was not entitled to compensation under the ACA.[29]

Critical to his Honour's conclusion in Dollisson were his views that:

(a) the introduction of s 135A into the ACA in 1992, which provision utilised the phrase 'entitled to compensation' without qualification in expunging the statutory right of 'seriously injured' workers to compensation where an award of damages was subsequently made, could only logically have been intended to be a reference to 'compensation under the ACA';

(b) it was unlikely, in 1997, when the amendments to the ACA abrogated all common law rights for an injured worker who was entitled to compensation, that the Victorian legislature would have intended to proscribe the recovery of common law damages of any kind in Victoria by an injured worker 'on the basis that he or she was entitled to some compensation, however inadequate or negligible, under the compensation regime (perhaps chronically underfunded) of some other state or territory';[30]

(c) when the serious injury gateway was re-introduced within s 134AB(1) of the ACA in 2000, the use of the words 'entitled to compensation' without qualification was still intended to be a reference to compensation 'under the ACA', which intention was specifically described in the second reading speech as follows:

[n]ew sections 134AA and 134AB reinstate the right of an injured worker who is or may be entitled to compensation under the Accident Compensation Act 1985 in respect of an injury arising out of or in the course of or due to the nature of employment to recover damages in respect of the injury subject to limitations...[31] (emphasis added)

(d) the lack of linguistic coherence present in the ACA, which had been extensively amended in multiple ways by multiple authors so as to be byzantine in its complexity, meant it qualified as a 'patchwork'[32] statute and little could be made of the inconsistent usage of the word 'compensation' with and without the qualification 'under this Act'; and

(e) the meaning of 'compensation' is to be understood by reference to statements in the Victorian Court of Appeal's decisions in Martin v Bailey,[33] Georgopoulos v Silaforts Painting Pty Ltd,[34] and Grech v Orica Australia Pty Ltd,[35] and Beach J's decision in Rogers v State of Victoria.[36]

23 I accept the defendants' description of the purpose behind the relevant provisions of the WIRC Act. The second reading speech to the Bill which introduced the amendments to restore the right to pursue common law damages for serious workplace injuries in the ACA in 2000 assists in identifying the mischief that s 134AB(1) of the ACA, now s 326 of the WIRC Act, was intended to rectify. The common law rights of an injured worker had been abrogated. The selected wording reflected the policy choices of the Parliament to balance the interests of seriously injured workers to be able to seek common law damages against the burden on Victorian businesses of the restoration of those common law rights, in terms of confining the costs and quantity of claims. As noted, that section was preserved in the WIRC Act which re-enacted the provisions of the ACA, albeit with amendments directed to achieving drafting improvements, including by imposing a more logical and simplified structure. The purpose described by the defendants is reflected in the 'more logical structure'[37] of the WIRC Act, which separates into distinct parts the provisions establishing and regulating the no-fault statutory compensation scheme, and those regulating an injured worker's common law rights to pursue damages under Part 7. This is a significant structural change from that of the ACA that clarifies and reinforces the two separate mechanisms for recovering compensation and damages for losses sustained as a result of workplace injuries. In my view, the influence of the objectives as set out in s 10 of the WIRC Act in construing the word 'compensation' as used in s 326, is neutral. Whilst I agree these expressed legislative objectives are not specifically advanced[38] by the interpretation of s 326 as promulgated by the defendants, it is not construction that is inconsistent with them. Those objectives are for the statutory compensation scheme that the WIRC Act establishes. The WIRC Act does not establish common law rights to recover damages for injuries suffered in the workplace, which have their origins outside the statute,[39] it only curtails them. It is unsurprising, therefore, that the objectives do not refer to them.

24 At the time of the restoration of common law rights in 2000, an injured worker had the choice of pursuing compensation under the regime of the state in which they were injured, or under that of the state with which their employment was connected. Therefore, the risk identified by the majority in Dollisson that an injured worker may recover de minimis compensation under the impoverished scheme of another state and yet face curtailed common law rights in Victoria was a matter within the power of the injured worker to decide. They were, at the time, entitled to bring their compensation claim in Victoria under its regime. The legislature deliberately removed that choice by amending the ACA in 2003, and introducing s 80 and the choice of law provisions in Division 6AB of the ACA, which mandated an injured worker to claim compensation under the regime of the state to which their employment was connected. Those provisions formed part of an agreed scheme of uniform legislation, aimed at preventing multiple compensation claims across different jurisdictions. If anything, it is as a result of this change that a worker now faces the risk, which is beyond their control, that they may recover compensation under the impoverished scheme of another state and face curtailed common law rights in Victoria. Yet, the 2003 amendments to the ACA made no changes to the antecedent provision to s 326, and all of those provisions have been re-enacted, without further relevant amendment, in the WIRC Act.

25 The plaintiff also asserts, relying on an example hypothesised in Dollisson, that the defendants' construction 'sits most uneasily' with the choice of law provisions in the WIRC Act. That reliance ignores the effect of the operation of the choice of law provisions as explained in Di Paolo. That decision confirms that the legislature intended, in enacting Division 6AB of the ACA (now ss 318 and 319 of the WIRC Act), to modify the common law choice of law rules to different extents depending upon the class of defendant. The effect of the wording of the provisions was to permit claims arising from the same injury as prosecuted against an employer, on the one hand, and non-employer parties on the other, to be governed by different substantive laws.[40] Moreover, and as noted above, the Court of Appeal described the legislative modifications to the common law choice of law rules in respect of claims against non-employers as 'more confined'[41] because:

... the non-employer, who may have taken all reasonable steps to comply with the law of his or her own jurisdiction, would have a reasonable expectation that his or her legal liability for events occurring in that jurisdiction would be governed by the laws of that jurisdiction rather than those of a jurisdiction to which his or her business operations and products have no connection. Balancing the legitimate interests of the foreign non-employer against the interests of the Victorian worker involves making policy choices. The policy choices that the Victorian Parliament made are reflected in the language of s 129MB [of the ACA] and this Court must give effect to that language.[42]

The legislature made a similar policy choice in omitting the words 'under the WIRC Act' after compensation in s 326 (and 'under the ACA' in its antecedent). A non-employer would have a reasonable expectation that their legal liability for workplace injuries resulting from events occurring in Victoria would be governed in the same way as other such claims arising from events occurring in Victoria and would not be altered, or enlarged, for the reason that the injured worker's employment was connected (potentially unbeknownst to them) with another state to which the non-employer's business has no connection.

26 I also accept the defendants' submission that, having regard to the re-enactment of the provisions of the ACA in the WIRC Act as a new comprehensive Act to simplify, improve and streamline the compensation regimes, to resolve ambiguities and improve the drafting, the WIRC Act is not amenable to being described as a patchwork statute. For this reason, the differing references, with and without qualifications, to 'compensation' throughout the WIRC Act cannot be dismissed as inconsistent drafting choices in the work of different authors at different times. Had the legislature sought to clarify that s 326 was only intended to conditionally extinguish the common law rights of an injured worker who had recovered compensation under the WIRC Act, it could have done so. In my opinion, the failure of the legislature to amend the wording of s 326 to add the qualification contended for by the plaintiff, when that or similar qualifications are used elsewhere in the WIRC Act, reflects a deliberate choice.[43]

27 Recalling that the meaning of the word 'compensation' in s 326 of the WIRC Act falls to be interpreted having regard to the text, context and purpose of that Act, I note that none of the Victorian authorities[44] referred to in Dollisson involved the statutory construction of the word 'compensation' as used in the antecedent to s 326 of the WIRC Act, nor did they involve facts comparable to the relatively unique circumstances of this case. Broadly, those cases concerned the construction of the terms 'injury' or 'arising out of, or in the course of, employment' in order to determine whether the injuries in respect of which claims were being made were 'compensable injuries' under the ACA. In this case, there is no dispute that the plaintiff has suffered an 'injury', and that it is one 'arising out of, or in the course of, his employment'. For that reason, it is undoubtedly a 'compensable injury'. However, as his employment is not connected with Victoria,[45] he has recovered compensation under the South Australian regime. The referenced authorities do not assist in the construction of s 326 of the WIRC Act in those circumstances.

28 In my view, the plaintiff is asking the Court to interpret s 326 as if it contained the additional words 'under the WIRC Act' or similar. In doing so, the plaintiff invites application of the test outlined in Taylor. Relevantly, that test is:

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature" (citations omitted).[46]

In so far as any reliance is placed on the second reading speech introducing s 134AB(1) of the ACA[47] to suggest there was an omission of the words 'under this Act' (or similar) in the ACA, and then the WIRC Act, by reason of legislative inattention, that involves speculation. There is no explanation for the contents of the second reading speech in respect of the amendments to the ACA and the failure of the qualifying words to then appear in the amended statute when enacted. Regardless, I do not consider there to be a drafting error in s 326 of the WIRC Act which if uncorrected would defeat the object of the provision. To the contrary, the construction urged upon this Court by the defendants is consistent with the purpose behind the provision. It would also avoid the anomalous outcomes identified by the defendants in their submissions.

29 For the above reasons, I find that the plaintiff cannot commence this proceeding without satisfying s 327 of the WIRC Act. In circumstances where he has not done so, his claim has no real prospect of success. The defendants are entitled to summary judgment in accordance with s 63 of the Civil Procedure Act 2010 (Vic).[48]

30 The proceeding will be dismissed, and the plaintiff will be ordered to pay the defendants' costs of the proceeding on a standard basis.

[1] [2015] VSCA 230 ('Di Paolo').

[2] Di Paolo [110] (Osborn and Kyrou JJA, Garde AJA agreeing).

[3] Di Paolo [117] (Osborn and Kyrou JJA, Garde AJA agreeing).

[4] Di Paolo [122] (Osborn and Kyrou JJA, Garde AJA agreeing).

[5] Swannell v Farmer [1998] VSCA 104; (1999) 1 VR 299, 307 [22] (Batt and Buchanan JJA, Callaway JA agreeing); State of Victoria v Robertson [2000] VSCA 113; (2000) 1 VR 465, 474 [26] (Batt JA, Callaway JA agreeing at 466 [1], Buchanan JA agreeing); Perakis v Secretary of the Department of Transport and Local Infrastructure (2017) 55 VR 367, 389 [93].

[6] Limitation of Actions Act 1958 (Vic).

[7] Different forms of words could be used to express the construction that is contended for, such as, 'under this Act', or 'in accordance with this Act', 'or 'under the WIRC Act'. Given these are all substantively equivalent, for ease and consistency in this ruling, I will use the words 'under the WIRC Act'.

[8] The plaintiff filed an affidavit affirmed by his solicitor which exhibits correspondence with WorkSafe Victoria in which WorkSafe Senior Manager - Greg Brown endorses the plaintiff's position.

[9] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (No. 3) 42 VR 27, at [29]

[10] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) ('Alcan'); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ) ('SZTAL'); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 264-5 [31] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 476 [14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[11] SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ) ('SAS').

[12] Alcan 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 517-8 (Mason CJ, Wilson and Dawson JJ).

[13] Alcan 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); SAS 162-3 [64] (Edelman J).

[14] Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531, 548 [38] (French CJ, Crennan and Bell JJ) ('Taylor').

[15] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).

[16] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320-1 (Mason and Wilson JJ).

[17] Australian Rail Track Corporation Limited v Dollisson [2020] NSWCA 58 ('Dollisson').

[18] Defendants' outline of submissions filed on 20 January 2025, [43].

[19] Explanatory Memorandum, Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic) 1 ('Explanatory Memorandum').

[20] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 1 ('WIRC Act').

[22] Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1002 (Robert Cameron). In Dollisson, Bell ACJ relied on a separate part of the second reading speech where the Minister stated that the new sections 134AA and 134AB were introduced to reinstate the right of injured workers entitled to compensation under the ACA to recover common law damages in certain circumstances: Dollisson [29], quoting Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1010 (Robert Cameron).

[23] WIRC Act ss 359, 360 (definition of 'common law proceeding'), 361, 367, 369, 371.

[24] WIRC Act ss 5, 6, 7, 11, 16, 18, 20, 24, 27, 32, 37, 39, 41, 44, 48, 49, 50, 58, 72, 90, 154, 176, 222, 240, 243, 244, 247, 263B, 263J, 268, 270, 273, 281, 301, 301C, 308, 309, 314, 315, 394, 413 (definition of 'tail claims'), 493, 557, 559 (definition of 'claim'), 568, 571, 576, 583, 597, 599, 608.

[25] WIRC Act ss 11, 12, 39, 47, 61, 167H, 207, 297.

[26] WIRC Act ss 3 (definition of 'weekly payment'), 7, 20, 21, 25, 26, 42, 43, 43A, 45, 73, 75, 95, 96 (definition of 'employment obligation period'), 116, 152 (definition of 'compensable injury', 'first entitlement period', 'second entitlement period', 'week'), 157 (definition of 'enhancement period'), 161, 162, 163, 164, 164A, 165, 167H, 168, 176, 184, 185, 187, 189, 192, 194, 241, 297, 298, 301C, 347, 543.

[31] Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1010 (Robert Cameron).

[32] National Grid Co plc v Mayes [2001] UKHL 20; [2001] 1 WLR 864, 878 [55] (Lord Hoffmann).

[33] [2009] VSCA 263; (2009) 26 VR 270 ('Bailey').

[34] [2012] VSCA 179; (2012) 37 VR 232 ('Georgopoulos').

[36] [2011] VSC 298 ('Rogers').

[39] Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647.

[40] Di Paolo [123]-[128] (Osborn and Kyrou JJA, Garde AJA agreeing).

[41] Di Paolo [110] (Osborn and Kyrou JJA, Garde AJA agreeing).

[42] Di Paolo [117] (Osborn and Kyrou JJA, Garde AJA agreeing).

[43] Notably, the re-enactment of the ACA in the WIRC Act occurred prior to the interpretation of the word 'compensation' in s 134AB(1) of the ACA in Dollisson, such that it cannot be argued that 'the legislature is to be assumed to have approved that interpretation': see generally Shephard v Chiquita Brands South Pacific Ltd [2004] FCAFC 76, [19], quoting Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 5th ed, 2001).

[44] In Bailey, the Court of Appeal considered whether the injury, even though caused by a third party, still 'arose out of or in the course of the employment', and found that it did so. Having found the injury was compensable, the Court of Appeal confirmed that s 134AB(1) also applied to restrict the worker's common law rights to pursue damages in circumstances where the injury was caused by a third party. In Georgopoulos, the Court of Appeal considered the meaning of s 134AB of the ACA for the purposes of determining whether, in a claim for damages at common law, the worker was bound to the specific injury or injuries certified by the workcover authority to be a serious injury or if the provisions simply acted as a gateway to a claim for damages for the total injury suffered which was compensable pursuant to s 82(1) of the ACA. Although the Court of Appeal describes the wording of s 134AB(1) as a reference back to s 82(1) of the ACA, it does not consider the effect, if any, of s 80 of the ACA ('Entitlement to compensation only if employment connected with Victoria') on those rights. In Grech, the Court of Appeal considered an appeal from a decision of the Judge of the County Court in dismissing an application brought under s 134AB(16) of the ACA for leave to bring proceeding in circumstances where the injury was not deemed to be a serious injury. The Court of Appeal, in allowing the appeal and remitting the matter to the County Court, held that it was very probable that a finding should have been made that the plaintiff suffered compensable injury on and after 20 October 1999 which materially contributed to the consequences which the plaintiff claimed constituted serious injury. In Rogers, Beach J considered whether the plaintiff who suffered a personal injury arising out of or in the course of jury service needed to comply with the serious injury requirements of s 134AB of the ACA in order to be entitled to recover common law damages. Beach J found that as the plaintiff had not sustained a workplace injury, the serious injury requirements under the ACA did not apply.

[46] Taylor 548 [38] (French CJ, Crennan and Bell JJ).

[47] Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1001-1011 (Robert Cameron).

[48] Given the plaintiff's rights to bring the proceeding to recover damages are extinguished by s 326 of the WIRC Act, s 64 of the Civil Procedure Act 2010 (Vic) has no application in the circumstances of this case.