Workers' Compensation - Administrative law - Judicial review - Certiorari and mandamus - Decision of Director of Conciliation and Review under Workers' Compensation and Rehabilitation Act 1981 (WA) - Purported election to exercise common law remedies - Late production of medical evidence - Effect of non-compliance with statutory timetable - Estoppel or waiver of statutory defences by conduct

Interpretation Act 1984 (WA), s 61(1)(f)

Limitation of Actions (Personal Injury Claims) Act 1983 (Vic)

Workers' Compensation and Rehabilitation Act 1981 (WA), s 93E(6)

Workers' Compensation and Rehabilitation Act 1987 (NSW), s 151D

Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999 (WA), s 3

Workers' Compensation and Rehabilitation Amendment Act 1999 (WA)

Workers' Compensation and Rehabilitation Regulations 1982, reg 19M

Archer v Howell (1992) 7 WAR 33

Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1961) 108 CLR 471

Baker and Campbell [1983] HCA 39; (1983) 153 CLR 52

Bestobell Overseas Ltd v Carden [1988] VicRp 80; [1988] VR 891

Bingham v England (1996) 17 WAR 226

Brikom Investments Ltd v Carr [1979] 1 QB 467

Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1

Cerealmangimi SpA v Toepfer [1981] 3 All ER 533

Chapple v Durstan [1830] EngR 40; (1830) 1 Cr & J 1; (1830) 148 ER 1311

Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159

Clarke v Bailey (1993) 30 NSWLR 556

Coco v The Queen [1994] HCA 15; (1993) 179 CLR 427

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501

Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 72 ALJR 687

Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305

Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 77 ALJR 40

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 78 ALJR 161

Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839

Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114

Enoka v Shire of Northampton (1996) 15 WAR 483

Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101

Graham v Ingleby [1848] EngR 92; (1848) 1 Ex 651; (1848) 154 ER 277

Groves v The Commonwealth [1982] HCA 21; (1981) 150 CLR 113

Grundt v Great Boulder Proprietary Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641

Haynes v Hirst (1927) 27 SR (NSW) 480

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503

Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850

Mannai Investment Co v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749

McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1

Mealing v P Chand [2003] NSWCA 205; (2003) 57 NSWLR 305

Paal Wilson & Co v Partenreederei [1983] 1 AC 854

Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295

Phillips v Martin (1890) 11 LR(NSW) 153

Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348

Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] 1 VR 27

R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122

R v McNeil & Anor [1922] HCA 33; (1922) 31 CLR 76

Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514

Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343

Re Keystone Knitting Mills' Trademark [1929] 1 Ch 92

Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19

Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96

Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223

Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253

Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129

Re Monger; Ex parte Woodford [1999] WASC 273

Re Ross Monger; Ex parte Swan Portland Cement Ltd [2001] WASCA 321

Re Sydney Formworks Pty Ltd (1965) 82 WN (Pt 1) (NSW) 558; [1965] NSWR 646

Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491

Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398

Smyth v Bailey & Co [1940] 3 All ER 60

Stevens v Motor Vehicle Insurance Trust [1978] WAR 232

Taylors Fashions Ltd v Liverpool Trustees Co Ltd [1982] QB 133

Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507

Toolan v Metro (Perth) Trust [2001] WASCA 131; (2001) 25 WAR 1

United Construction Pty Ltd v Maketic [2003] WASCA 138

Waddington v Silver Chain Nursing Association [1998] WASCA 331; (1998) 20 WAR 269

Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; (1987) 164 CLR 387

Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713

Wilson v McIntosh [1894] AC 129

Wright v John Bagnall and Sons Ltd [1900] 2 QB 240

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1991) 175 CLR 564

Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163

Davies and Jones v State of Western Australia [1904] HCA 46; (1904) 2 CLR 29

Esmonds Motors Pty Ltd v Commonwealth [1970] HCA 15; (1970) 120 CLR 463

Ex parte George Chapman Ltd [1932] SASR 184

Ex parte Kauter (1904) 4 SR(NSW) 209

Footscray Corporation v Maize Products Pty Ltd [1943] HCA 15; (1943) 67 CLR 301

Ira, L & AC Berk Ltd v Commonwealth (1930) 30 SR(NSW) 119

King-Brooks v Roberts (1991) 5 WAR 500

Levy v Victoria (1997) 189 CLR 579

McEldouney v Forde [1969] 2 All ER 1039

Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402

Mucris v Lucas [1971] SASR 329

Plunkett v Smith [1911] HCA 58; (1911) 14 CLR 76

R v Anderson; ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177

R v Commissioner of Patents; ex parte Martin [1953] HCA 67; (1953) 89 CLR 381

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389

Re Monger; Ex parte Ivey [1999] WASC 250

Wells v Finnerty (1910) 12 WALR 41

Western Australian Field & Game Association Inc v Pearce (1992) 8 WAR 64

Young v Tockassie [1905] HCA 17; (1905) 2 CLR 470

1 MALCOLM CJ: This is the return of an order nisi for a writ of certiorari and a writ of mandamus whereby Mr Ross Monger, the Director of the Conciliation and Review Directorate, show cause before the Full Court of the Supreme Court why such writs should not be issued against him for the purpose of being quashed the decision of the Director:

(a) not to register the election issued by Peter Norman Cross ("the applicant") on the ground that it did not comply with s 93E(3)(b) of the Workers Compensation and Rehabilitation Act 1981 (WA) ("the Act") and Reg 19M of the Workers Compensation and Rehabilitation Regulations 1982 ("the Regulations"),

which non-registration of the form 25 was contrary to the provisions of the Act; and compelling the Director to:

(b) register the election issued by the applicant in form 25 on the basis that it does comply with s 93E(3)(b) of the Act and Reg 19M of the Regulations on the following grounds:

A By virtue of s 93E(3)(b) of the Act and Reg 19M of the Regulations, the Director was required to register the election of the applicant produced to the Director.

B The applicant's form for registration does comply with the requirements of s 93E(3)(b) of the Act and cl 19M of the Regulations.

C The Director should have registered the Form 25 on the basis that it did comply with the Act and Regulations.

2 The question raised by the order nisi requires the determination of the proper interpretation and application of the relevant provisions of Pt IV Div 2 of the Act and the relevant regulations. The apparent purpose of the statutory provisions is to limit the right of a worker to be awarded damages at common law for injuries caused by the negligence of his or her employer.

3 Section 93C provides that, if the provisions of the Division apply, "a court is not to award damages to a person contrary to this Division". Section 93E(3)(b) relevantly provides that damages can only be awarded to a worker if:

"the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."

"For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."

5 The question whether a worker has a significant disability or not can be resolved by agreement between the worker and his employer. Absent such an agreement, the question can be determined in accordance with s 93D of the Act and the relevant provisions in that respect which are contained in Pt IIIA of the Act.

6 The applicant alleged that in May 1996 he injured his right elbow in the course of his employment by Boral Resources WA Ltd ("Boral"), as a result of which he made a claim for workers compensation. Weekly payments of worker's compensation commenced on a date which was prior to 5 October 1999. It was on that date that the Act received the Royal assent and came into force. By virtue of s 93E(6)(a) of the Act, the applicant was required to produce to the Director the medical evidence on which he relied, together with a Form 22 by 14 December 1999. The Form 22 and the medical evidence was lodged two days late on 16 December 1999. The late lodgement was not noticed by or on behalf of the Director and the form accepted.

7 On 5 January 2000, the applicant sought to make an election pursuant to s 93E(3)(b) by lodging a document in Form 25, being the form prescribed by the Regulations. The applicant's position was that, at the time he purported to make the election, it had not been determined whether or not he had a disability of not less than 16 per cent. Unfortunately for him that day, 5 January 2000, was the "termination date" for all workers, including the applicant, who had begun to receive weekly payments of compensation before 5 October 1999. That was the day on which the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), as amended by s 3 of the Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999 (WA) came into effect.

8 As at the termination date on 5 January 2000, the degree of disability suffered by the applicant had not been determined because it had been disputed by his employer. Previously, on 16 December 1999, the applicant had referred the dispute to the Director of the Conciliation and Review Directorate, Mr Monger, pursuant to s 96D(6) of the Act by lodging a Form 22 and the medical evidence on which he relied.

9 On 25 January 2000, the Director rejected the applicant's purported election on the ground that he had failed to comply with Reg M of the Regulations. Reg M provided that an election could not be made unless the degree of disability had been agreed by the worker and the employer, or determined to be not less than 16 per cent.

10 It follows that, at 25 January 2000, the applicant could not make an election under s 93E(6) of the Act. Section 93E(6) only applied when the degree of disability was still in dispute on the termination day. In such a case, the worker was entitled to elect within 14 days after he had been given notice by the Director that an agreement or determination of the worker's degree of disability had been recorded. At that time, the applicant was unable to satisfy the requirement in s 93E(6)(a) that he produce the necessary medical evidence "not less than 21 days before the termination day".

11 As has already been seen, the position then was that the applicant should have produced the evidence of his degree of disability to the Director no later than 14 December 2000: see s 61(1)(f) of the Interpretation Act 1984 (WA). The relevant evidence was not put before the Director until 16 December 2000, which was two days out of time. The Director had no power to extend the time for compliance.

12 As it happened, the Director failed to notice that the applicant had lodged his election out of time. Instead, he referred the matter to a Review Officer. The purported reference was the subject of a hearing by the Review Officer. In the result, the Review Officer determined on 22 March 2001 that the applicant had suffered a disability of not less than 16 per cent. The solicitors for the applicant were informed of this determination by a letter from the Director dated 29 March 2001.

13 The solicitors for the applicant considered that the applicant was then entitled to make a further election under s 93E(6) and did so within the time limited by that provision. This purported election, however, was rejected by the Director on 20 April 2001 on the ground that the Form 22 and supporting medical evidence lodged on 16 December 1999 had not been lodged not less than 21 days before the termination day.

14 I agree with Pullin J that had the Director rejected the purported election lodged on 16 December 1999, as he was entitled to do, the applicant would have had no grounds for complaint. Notwithstanding the comparative complexity of the legislation, the time limits within which the applicant was required to act were clear. It is also clear that neither the Director, nor the Court had any power to extend the time. The plain fact is that the Director should have rejected the application by the applicant because the date for the commencement of weekly payments was specified in the Form 22 as "prior to 5/10/99". In these circumstances, the applicant was not and could not ever be in a position to make an election.

15 It was contended on behalf of the applicant that because Boral did not take any point about the Form 22 being lodged out of time, participated in the review proceedings and contested them on the merits, Boral should be taken to have waived the time limit which required the form to be lodged with the Directorate 21 days before the termination date. The authority against that contention is the decision to the contrary in Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223 per Anderson J at [21], with whom Wallwork and Steytler JJ agreed. As Templeman J has rightly pointed out in his reasons, s 93C expressly prohibits a Court from awarding damages "to a person contrary to this Division".

16 It was contended on behalf of the applicant that this Court should overrule or depart from the decision in Re Monger; Ex parte TNT Australia Ltd. It was for this reason that a bench of five Judges was constituted for this case. Subject to the question of waiver, I am of the opinion that the decision in Re Monger; Ex parte TNT Australia Ltd was clearly correct as a matter of law. The question is whether there is room for the application of the doctrine of waiver to the relevant time limit which required the Form 22 to be filed on or before 14 December. In my opinion, subject to that question, the present case is otherwise indistinguishable from Re Monger; Ex parte TNT Australia Ltd which held that the failure to observe the time limit prescribed by s 93E(6) was fatal.

17 It is appreciated, as Templeman J has pointed out, that the applicant had only a little more than five weeks in which to obtain the necessary medical evidence and lodge the Form 22 with the Director. As his Honour has also pointed out, however, there are various unknowns in relation to the full circumstances.

18 As Anderson J (with whom Wallwork and Steytler JJ agreed) said in Re Monger; Ex parte TNT Australia Ltd (supra) at [21], "The question is one of construction". On the face of it, once the relevant Division applies the effect of s 93C is that the worker must take all of the necessary steps within the prescribed periods if he is to recover damages. The failure to do so, it was held, deprives the Court of jurisdiction to award damages. As a result, Anderson J held at [13] that "neither the consent of the parties nor unauthorised administrative act of the Director can overcome that provision". This conclusion implies that the effect of the provision is that unless the relevant provisions of the Division are complied with, the common law right to claim damages is lost because the Court is deprived of jurisdiction to award damages.

19 Unfortunately, as Templeman J has pointed out, in this case the Court was not fully informed of the circumstances and, in particular, the explanation why it took so long after the applicant suffered his injury in 1996 to ascertain his degree of disability for the purposes of making an election. We were not informed whether there were other persons in a similar position.

20 I am also puzzled by the failure of the Director to respond to the letter to him dated 4 April 2001 from the applicant's solicitors, which sought clarification of an understanding that, at the time the relevant regulations were gazetted retrospectively, the Director had indicated that a Form 22 filed "on or about" 14 December 1999 would be accepted as complying with the regulations and seeking clarification in relation to that.

21 Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96; Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253; and Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 each held that the adequacy of the medical evidence furnished with a Form 22 referral conditioned the exercise of the jurisdiction of the Director to consider, in accordance with s 93D, the dispute about the degree of disability of a worker and his power to refer any dispute about it to a Review Officer for determination under s 93D(10) of the Act.

22 The question in this case is whether the time limit for filing a Form 22 can be overcome by resort to one or other of the doctrines of waiver or estoppel in a situation where the effect of the relevant statute is to provide that the Court has no jurisdiction to award damages contrary to the provisions of Div 2 of Part IV of the Act as provided in s 93C of the Act.

23 In the present case, as Heenan J has pointed out, it was common ground that the medical evidence relied upon by the applicant filed in conjunction with the Form 22, and later referred to the Director, satisfied the statutory requirements. This was also the position in Re Monger; Ex parte WMC Resources Ltd. That decision, together with the decisions in Re Monger; Ex parte Dutch (supra); and Re Monger; Ex parte United Construction Pty Ltd (supra) have made it clear that the adequacy of the medical evidence, which is required to accompany the Form 22 referral, conditions the jurisdiction of the Director to consider a dispute about the degree of disability of a worker, as well as the ability of the Director to refer such a dispute to a Review Officer for determination under s 93D(10).

24 The relevant issue in this case is whether the time limit for the filing of the Form 22, should be characterised as barring a right as distinct from a remedy. In the former case, there is no room for the operation of waiver. If, however, the provision bars the remedy rather than a right, the bar may be waived or may, by operation of the doctrine of estoppel, preclude a defendant from taking the point, in the event that proceedings are subsequently commenced.

25 Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (4th Ed 2002) at 17-140 suggest that whilst there is the beginning in the decisions in England and Australia of an appreciation that "waiver" is used as a synonym for a number of principles, each distinct from the other, there has been little attempt to answer the question whether "waiver" has any independent, and if so what, content of its own. In this context, reference is made to a number of authorities including Haynes v Hirst (1927) 27 SR (NSW) 480 at 486 - 487: Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 at 882 - 884; Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713; Brikom Investments Ltd v Carr [1979] 1 QB 467 at 489 - 490; Cerealmangimi SpA v Toepfer [1981] 3 All ER 533 at 538 - 9; Taylors Fashions Ltd v Liverpool Trustees Co Ltd [1982] QB 133 at 150- 151; and Paal Wilson & Co v Partenreederei [1983] 1 AC 854 at 913 - 914 and 916.

26 In Commonwealth v Verwayen (1990) 170 CLR 394 at 401 - 402, Mason CJ noted that, in relation to actions brought against the Commonwealth following the loss of HMAS Voyager in a collision with HMAS Melbourne, the Commonwealth did not plead that the actions were statute-barred under the Limitation of Action Act 1958 (Vic) ("the Act"). There was formal notification by the Australian Government Solicitor that the Commonwealth proposed to admit liability and to waive the Statute of Limitations defence. Damages only were in issue. A number of Commonwealth Ministers made public statements that this decision had been taken together with the adoption of a policy not to contest liability.

27 In or about November 1985, the Commonwealth decided to reconsider its previous stance and began to plead a defence based on The Limitation Act and a contention that the Commonwealth owed no duty to the plaintiffs based on Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295 at 301 - 302 per Windeyer J, which had been disapproved in Groves v The Commonwealth [1982] HCA 21; (1981) 150 CLR 113 by Stephen, Mason, Aickin and Wilson JJ at 129 - 134. One answer to this change of tack was that the plaintiffs replied that the Commonwealth had disclosed no defence to the decisions in Parker and Groves and that the Act did not apply to the Commonwealth. Alternatively, it was pleaded that the Commonwealth had waived such defences. It was also pleaded that the Commonwealth was estopped from relying on either defence.

28 The questions of law raised by the amended defence were argued as a preliminary matter on the basis that the relevant facts were not in issue or would not be seriously disputed at the trial. O'Bryan J held that the public policy defence based on Groves (supra) was not available to the Commonwealth on the facts. In relation to waiver, it was held that if the Commonwealth had waived the limitation defence, such waiver was revocable and had been revoked by the Commonwealth. There was no estoppel because the parties had not been in a pre-existing legal relationship. Further, the respondent (plaintiff) had not been materially disadvantaged because any legal costs incurred could be recovered by an appropriate costs order.

29 The decision of O'Bryan J on estoppel was prior to the decision in Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; (1987) 164 CLR 387. As Mason CJ pointed out at 403 in Verwayen, if a pre-existing legal relationship was needed in order to found a promissory estoppel, it was clearly present in Verwayen.

30 It was also contended on behalf of the respondent in Verwayen that the Commonwealth had voluntarily and irrevocably waived the benefit of a statutory right to plead the Limitation Act as a complete defence. In considering this contention, Mason CJ said at 404 that:

"Undoubtedly, some statutory rights are capable of being extinguished by the person for whose benefit they have been conferred: Sandringham Corporation v. Rayment [1928] HCA 13; (1928) 40 CLR 510 at p 527; Wilson v. McIntosh [1894] AC 129 at pp 133-134. However, some statutory rights may also operate as a condition precedent to a court's jurisdiction: Park Gate Iron Co. v. Coates (1870) LR 5 CP 634; Kammins Ballrooms Co. v. Zenith Investments (Torquay) Ltd [1971] AC 850. More importantly, some rights may be conferred for reasons of public policy so as to preclude contracting out or abandonment by the individual concerned: see Lieberman v. Morris [1944] HCA 13; (1944) 69 CLR 69. It is therefore necessary to examine the relevant statutory provision in this case in order to ascertain whether it is susceptible to extinguishment in this way.

Section 5(6) of the Act provided:

'No action for damages for negligence ..., where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person, shall be brought after the expiration of three years after the cause of action accrued.'

This sub-section was repealed by s 3(c) of the Limitation of Actions (Personal Injury Claims) Act 1983 (Vict). However, s 11(2) of that Act provided:

'The Acts amended by this Act shall apply as in force immediately before the commencement of this Act to a cause of action arising more than six years before the date of commencement of this Act.'

That Act was proclaimed to commence on 11 May 1983."

"Although the terms of s 5(6) are such that it is susceptible of being read as going to the existence of the jurisdiction of a court to hear and determine an action of the kind described, limitation provisions similarly expressed have not been held to limit the jurisdiction of courts. Instead, they have been held to bar the remedy but not the right and thus create a defence to the action which must be pleaded: Dawkins v Lord Penrhyn (1878) 4 App Cas 51 at pp 58-59; The Llandovery Castle [1920] P 119 at p 124; Dismore v Milton [1938] 3 All ER 762; Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398; Ketteman v. Hansel Properties Ltd [1987] AC 189 at p 219."

32 Mason CJ went on to consider whether the defence under the statute in question was capable of waiver. His Honour said at 406:

"... it is possible to 'contract out' of the statutory provisions, and it is equally possible to deprive them of effect by other means such as waiver. Put differently, the provisions are procedural rather than substantive in nature, which suggests that they are capable of waiver: Admiralty Commissioners v Valverda [1938] AC 173 at 185."

33 The Chief Justice went on at 406 - 407 to consider the question whether waiver exists as a defence or answer in any case "except where it is used as an alternative designation for some other defence or answer, for example, election, estoppel or new agreement". His Honour also said at 406 - 407:

"According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd. [1920] HCA 64; (1920) 28 CLR 305 at p 326; Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 at p 658. However, the better view is that, apart from estoppel and new agreement, abandonment of a right occurs only where the person waiving the right is entitled to alternative rights inconsistent with one another, such as the right to insist on performance of a contract and the right to rescind for essential breach: see Kammins, at p 883. This category of waiver is an example of the doctrine of election.

Another category of waiver is one in which a person is prevented from asserting, in response to a claim against him, a particular defence or objection which would otherwise have been available. Here waiver is said to arise when the person agrees not to raise the particular defence or so conducts himself as to be estopped from raising it: see Kammins, at p 883."

34 The Chief Justice acknowledged at 405 the public policy that there should be finality in civil litigation. The chosen method of achieving this in Verwayen was not by way of "imposing a jurisdictional restriction, but by conferring on defendants a right to plead as a defence the expiry of the relevant time period". It followed that the purpose of the statute was to confer a benefit on individuals rather than meet some public need which must be satisfied to the exclusion of the right of access to the Courts.

"But, granted that some statutory rights can be waived, the mere existence of cases in which statutory rights have been held to be susceptible to waiver does not signify that those cases are all exemplifications of one concept or doctrine. As often as not, the term 'waiver' is used to describe the result of the application of various principles rather than to designate a particular legal concept or doctrine. The consequence is that the expression 'waiver' has been the subject of robust criticism, notably by Dr Ewart in his work Waiver Distributed, (1917); see also Bysouth v Shire of Blackburn and Mitcham (No 2) [1928] VicLawRp 81; [1928] VLR 562 at p 579; Larratt v Bankers and Traders' Insurance Co (1941) 41 SR (NSW) 215 at p 226; Kammins, per Lord Diplock [at pp 882-883]. This is because 'waiver' is an imprecise term capable of describing different legal concepts, notably election and estoppel."

36 Mason CJ commented at 407 that, in these circumstances, the authorities dealing with waiver of statutory rights did not call for special consideration. This was because they spoke "with different voices, sometimes in the language of election, in times that of estoppel and at other times in terms of unconscionability".

37 In the result, the Chief Justice concluded at 414 - 415 that the respondent had been induced by the Commonwealth's conduct to assume that the Commonwealth had made a decision not to plead the limitation defence or the Groves defence, and that that decision would not be changed. The circumstances pointed to the existence of a definitive government policy which had been followed to the point of judgment in other cases, and which supported the conclusion that the assumption made by the respondent and his advisers was a reasonable assumption for them to make. There was a detriment which flowed from reliance on the assumption if the assumed state of affairs was shown not to exist. In the end, however, Mason CJ held that the respondent's case on waiver and estoppel had not been made out.

38 Brennan J, who dissented, would have allowed the appeal and remitted the matter to the trial Judge to determine what detriment was suffered by the plaintiff in continuing with the action until the defence was amended, and what was fair compensation for that detriment. Further, that upon payment by the defendant to the plaintiff of the amount so ascertained, the action would stand dismissed. Finally, his Honour considered that the plaintiff should pay the costs of the proceedings after amendment of the defence.

39 Brennan J at 422 also quoted the following comments by Lord Wright in Smyth v Bailey & Co [1940] 3 All ER 60 at 70 regarding the meaning of "waiver":

"The word 'waiver' is a vague term used in many senses. (Stroud's Judicial Dictionary lists at least 13.) It is always necessary to ascertain in what sense and with what restrictions it is used in any particular case. It is sometimes used in the sense of election as where a person decides between two mutually exclusive rights. Thus, in the old phrase, he claims in assumpsit and waives the tort. It is also used where a party expressly or impliedly gives up a right to enforce a condition or rely on a right to rescind a contract, or prevents performance, or announces that he will refuse performance, or loses an equitable right by laches."

"To identify the relevant legal doctrine, it is necessary to identify the sense in which we intend to use the term 'waiver'. In this case, there is no contract to admit liability (a proposition considered in Newton, Bellamy and Wolfe v SGIO [1986] 1 Qd R 431) and we can put aside until we consider estoppel the kind of waiver which depends on the suffering of detriment by a person who relies on the waiver. We are concerned here with a unilateral release or abandonment of a right. In Banning v. Wright [1972] 1 WLR 972 at pp 978-979; [1972] 2 All ER 987 at p 998, Lord Hailsham of St Marylebone LC pointed out that 'waiver' is derived from the same root as the word 'waif' - a thing, or person, abandoned. Lord Hailsham, after citing the speech of Lord Wright (supra), continued:

'In my view, the primary meaning of the word 'waiver' in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted.'

In accord, see Halsbury's Laws of England, 4th ed (1976), vol 16, par 1471. His Lordship must not be taken to be saying that waiver necessarily occurs before pleadings are closed. Clearly enough, rights are frequently waived during a trial. What his Lordship is saying is that a right which is susceptible of waiver can be 'confessed' by a party against whom it might prima facie be exercisable but that party's liability can be 'avoided' by showing that the right has been abandoned. In other words, upon waiver, the party waiving the right ceases to be able thereafter to assert it effectively. When a right has been waived in the sense defined by Lord Hailsham (and it is in this sense that it is used in this judgment), it is unnecessary to consider whether any other party has acted in reliance on the release or abandonment: the right is abandoned once and for all."

41 Brennan J went on to make a detailed examination of what was involved in waiver at 424 - 428. The general principle was stated by Alderson B at p 657 Graham v Ingleby [1848] EngR 92; (1848) 1 Ex 651; (1848) 154 ER 277 at p 279 as follows:

"It is evident that a party who has a benefit given him by statute, may waive it if he thinks fit. There are many cases in which no action can be commenced except after certain notice of action. That is a requirement by statute; but if a plaintiff went to trial, and the defendant did not then object to the want of notice, could he afterwards set aside the whole proceedings because no notice was given? It is clear that he could not."

42 In Wilson v McIntosh [1894] AC 129, a caveat had been lodged against an application to bring land under the Real Property Act 1862 (NSW). The time limited for the caveator to commence proceedings having expired, the caveat lapsed and the applicant was entitled to have the caveat removed. The applicant, however, obtained an order that the caveator should state her case, which she did. The applicant, without having taken any steps to set the matter down for hearing, applied to have the caveat removed because it had expired. The application was refused by the Privy Council.

43 In Verwayen at 425, however, Brennan J said that:

As it is a characteristic of a right susceptible of waiver that it is introduced solely for the benefit of one party, a condition precedent to the jurisdiction of a court to grant relief cannot be waived: Park Gate Iron Co v Coates (1870) LR 5 CP 634. It follows that, if the jurisdiction of a court to entertain proceedings is conditioned on the commencement of the proceedings within a specified time, a defendant cannot waive the time requirement and thereby confer jurisdiction on the court."

44 Brennan J also referred to Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1961) 108 CLR 471 at pp 488-489 in which, Windeyer J said:

"It seems that, under the common law system of pleading, when a limitation is annexed by a particular statute to a right it creates, the plaintiff should allege in his declaration that the action was brought within time. On the other hand it is for the defendant to plead the Statute of Limitations as a defence to an action on a common law cause of action, as if he does not it is assumed that he intends to waive it: see Chapple v Durston [(1830) 1 C and J 1 at p 9 [1830] EngR 40; (148 ER 1311 at p 1314)]. However, when issue is joined on a plea of the Statute, the burden of proving that the action is within time is on the plaintiff: see cases referred to by Dixon J, as he then was, in Cohen v Cohen [(1929) [1929] HCA 15; 42 CLR 91 at p 97)]. And, even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived, either expressly or in some cases by estoppel: Wright v John Bagnall and Sons Ltd. [[1900] 2 QB 240]; Lubovsky v Snelling [[1944] KB 44]."

45 It is well established that statutes of limitations such as the Limitation Act 1984 (WA) bar the remedy and not the right so that a defendant who relies on the statute must plead it, otherwise he will be presumed to waive it: Chapple v Durstan [1830] EngR 40; (1830) 1 Cr & J 1; (1830) 148 ER 1311 at 1314.

46 Brennan J went on to say in Verwayen at 427 that:

"The time when waiver of a right occurs depends on the relationship between a party possessed of such a right and the party whose interests may be affected by exercise of the right. When the party possessed of the right knows that a new legal relationship is to be constituted between him and the party whose interests are liable to affection by exercise of the right and that the right, if exercised, might affect that new relationship, the party possessing the right must enforce the right before the new relationship is constituted or he will be held to have waived the right. The new relationship is typically created by the pronouncing of a judgment in which the existing rights of the parties are merged or by the making of an order, but it may be created in other ways. However created, it is on or before the constitution of the new relationship that the right must be exercised: the right is not waived until the last moment at which its exercise is capable of affecting the new relationship: see Ward v Raw [(1872) LR 15 Eq 83 at p 85]. Once the new relationship is constituted without exercise of the right, it is immaterial that the relationship would not have been differently constituted had the right been exercised."

Significantly, Brennan J also went on to say at 427 that:

" ... a right is waived only when the time comes for its exercise and the party for whose sole benefit it has been introduced knowingly abstains from exercising it , a mere intention not to exercise a right is not immediately effective to divest or sterilize it. Vaughan B. in Chapple v. Durston was precise in speaking of a defendant's failure to plead a time bar not as a waiver but as the foundation for a presumption that the defendant "intends to waive it". Waiver of a time limitation which bars a remedy occurs only when the time for granting the remedy arrives, that is, the moment before judgment. Until that time arrives, the time limitation is not waived. If a party is to be held to an intention to waive the limitation, it can be only by contract or estoppel or, where the intention to waive appears from a failure to plead the limitation, by refusal of leave to amend the pleading (if leave be necessary and refusal of leave be justified)."

"It follows that, if the jurisdiction of a court to entertain proceedings is conditioned on the commencement of the proceedings within a specified time, a defendant cannot waive the time requirement and thereby confer jurisdiction on the court. Conversely, where a case is fought on the issue whether a time limitation in a particular statute is or is not a condition precedent to jurisdiction, an argument that another statute overrides the time limitation can be raised on appeal though conceded in the court below: Adams v. Chas. S. Watson Pty. Ltd. [(1938) [1938] HCA 37; 60 CLR 545 at pp 547,548]. However, a defence under s.5(6) of the Limitation Act does not create a condition precedent to jurisdiction. It is merely a right conferred on a defendant to defeat a claim brought outside the time limited by the Limitation Act."

48 This reinforces the view that this case turns first on the question whether the relevant statutory provision had the effect of barring the right to damages or the remedy by way of damages. If the answer to that question is that it has barred the remedy, then the question becomes whether the relevant statutory restriction in terms of time is capable of waiver and, if so, whether in this case, the time limit for filing the s 22 notice had been waived by the respondent.

49 Deane J at 431 decided Verwayen on the basis of the application of the general doctrine of estoppel by conduct and otherwise was in general agreement with the judgment of Dawson J, including his Honour's conclusion that the appeal should be dismissed. After a review of the authorities, Deane J concluded at 440 that:

"... it appears to me that the Courts of this country should recognise a general doctrine of estoppel by conduct which encompasses the various categories of 'equitable estoppel' and which operates throughout a fused system of law and equity."

50 At 443 - 446, his Honour stated seven points which were referred to as the "conceptual foundation and essential operation of the doctrine of estoppel by conduct". In essence, these were that:

(1) estoppel by conduct is a doctrine of substantive law to be pleaded and resolved like any other factual issue and binds the parties and their privies, as the basis of primary rights of property and contract;

(2) the central principle is that the law will not permit "unconscientious" departure by one party from an assumption adopted by another party which would cause detriment to the other party in litigation;

(3) the party claiming the benefit of an estoppel must have adopted the assumption so as to place himself at a significant disadvantage if departure was permitted;

(4) the conduct of the estopped party must be such that it would be unconscionable to deny the assumption adopted by the other party as a result of representation; entry into a contract on the basis of a shared assumption; the exercise of rights dependent on the correctness of the assumption; knowledge by one party that the other was relying on the assumption and refraining from correcting him when it was his duty in conscience to do so;

(5) the assumption may be of fact or law, present or future;

(6) the doctrine operates consistently at law and in equity;

(7) estoppel by conduct by itself is not an independent cause of action but may be relied upon either by a plaintiff or a defendant to fashion relief as a defence;

(8) it follows that the doctrine has a degree of flexibility so that relief on the basis of the assumed state of affairs represents "the outer limits" within which the approach to do justice between the parties should be framed.

51 Significantly, at 449 - 450 Deane J stated that he did not see Verwayen as a case of waiver. His Honour's reasons for that were:

"In Foran v Wright [(1989) [1989] HCA 51; 168 CLR 385 at 433 - 435], I expressed the view that the somewhat arbitrary doctrine of waiver is being increasingly absorbed and rationalized by the more flexible doctrine of estoppel by conduct and that, 'in cases ... where the focus is upon action by one party 'upon' what was conveyed to that party by the other party, the applicable primary doctrine should be seen in a modern context as that of estoppel'. Upon reflection, I should have omitted the qualification 'primary' from that statement. In the context of the development of the general doctrine of estoppel by conduct in recent years, it seems to me to be preferable to confine the rubric of 'waiver' within the area of the law in which, notwithstanding the absence of consideration, the act of the alleged waivor is of itself directly operative to 'waive' a right or entitlement without there being any need to establish that the other party has acted upon the basis that the right or entitlement in question was no longer asserted. The principal examples of cases falling within that area are cases of true election (see, generally, the discussion in the judgment of Lord Goff of Chieveley in The 'Kanchenjunga' [[1990] 1 Lloyd's Rep 391 at pp 397-400]). Where a case is said to fall within that area, estoppel by conduct may, if the claim of waiver fails, operate either directly to preclude enforcement of the right allegedly waived or indirectly to preclude departure from a representation that the right had been or would be waived."

52 Dawson J at 451 expressed the view that, in the context of Verwayen, there was no distinction in principle between waiver and estoppel. As his Honour said, where "not used in the sense of election between mutually exclusive alternatives ... [waiver] is generally indistinguishable from estoppel". His Honour noted that this point had been made by Isaacs J in Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305 in the context of waiver by election. Dawson J referred at 453 to the judgments of Dixon J in Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507 and Grundt v Great Boulder Proprietary Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, in which the description of estoppel by conduct was equally applicable to common law estoppel and equitable estoppel: see, in particular Thompson v Palmer at 547. The "unjust departure ... from an assumption" referred to by Dixon J was applicable both with respect to an existing state of affairs or future conduct.

53 In Verwayen, the parties were in a legal relationship as parties to the action. The doctrine of estoppel was held by Dawson J at 455 to be confined to parties in a pre-existing contractual relationship: Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839 at 847; and Walton Stores (Interstate) Ltd v Maher (supra). It was on the basis of these authorities that Dawson J concluded that, as litigants, the parties were in a legal relationship which gave rise to mutual rights and duties. The Commonwealth had a statutory right to bar the respondent's action by pleading the statute of limitations. If by its conduct the Commonwealth caused the respondent to assume that it would not exercise its right, departure by the Commonwealth from that assumption would be unconscionable and operate to the detriment of the respondent in reliance on the assumption, the Commonwealth should be estopped from relying on the statute.

54 In this context of "waiver" of a statutory right, Dawson J said in Verwayen at 456:

"It is commonly said that a person may waive a statutory right in the sense of not relying upon it. In order to waive a statutory right in this way, it must be a personal or private right and must not rest upon public policy or expediency: see Brown v. The Queen [(1986) [1986] HCA 11; 160 CLR 171, at p 208]. Provided that it bars a remedy rather than extinguishes a cause of action, a statute of limitations gives rise to a right of that kind and it must be pleaded if it is to be invoked: Re Burge; Gillard v. Lawrenson [(1887) 57 LT 364]. If it is not pleaded, it is said to be waived, but the use of the term 'waiver' in this way exemplifies its imprecision. A waiver of this kind does not amount to an election and does not necessarily give rise to an estoppel."

55 Dawson J said at 457 that, the appellant having amended its defence to plead the statute of limitations and the respondent having pleaded waiver or estoppel, an issue was raised for trial. His Honour made it clear, however, at 457 that the issue raised was one of estoppel rather than of waiver in some other sense. As Dawson J also said at 457:

"When the term 'waiver' is not being used to describe election or estoppel it may be used loosely to indicate non-insistence upon a right either by choice or by default. The use of the term in that sense raises a different question, namely, whether a party, having failed to insist upon his right at an appropriate time should later be allowed to do so. In this case, that question was determined when the appellant was given leave to amend its defence."

56 Dawson J concluded at 462 that, by falsely raising the respondent's hopes, the Commonwealth led him to continue with the action and forgo exploration of a possible settlement, suffering prolonged stress in a case in which he claimed damages which included compensation for a high level of anxiety. The Commonwealth was estopped from insisting on the statute of limitations.

57 In the result, the appeal was dismissed by a majority comprising Deane, Dawson, Toohey and Gaudron JJ on the basis that the Commonwealth was not free to dispute its liability to the plaintiff because Deane and Dawson JJ held that it was estopped from so doing and Toohey and Gaudron JJ because it had waived its right to rely on either defence. Mason CJ, Brennan and McHugh JJ dissented.

58 Toohey J concluded at 470 that waiver in the present context involved "election" and, for that reason, differed from estoppel. At 470 - 471 his Honour addressed the questions, "In what circumstances does waiver operate? In particular, when is a defendant precluded from relying upon a defence such as a plea of limitations?" His Honour was careful to point out that this involved no confusion with variation of contract or promissory estoppel. It was regarded as an election by a party between inconsistent rights, or the choice to take a jurisdictional point, plead a particular defence, or take some other step in proceedings, or not to do so. The party may not take up inconsistent positions however.

59 Toohey J noted at 472 that it was common place to speak of a person "waiving" a right by submitting to the jurisdiction of a court which did not otherwise have jurisdiction, not insisting on implementation of an arbitration clause, not pleading an irregularity, or pressing at trial an argument otherwise available. In that context, Toohey J concluded at 473 that:

"Waiver, in the sense used for the purposes of this appeal, may be found in the deliberate act of a defendant not to rely upon a defence available to him. That is not to say that there must be an intention to bring about the consequences of waiver; rather, the conduct from which waiver may be inferred, must be deliberate. Detriment is not an essential attribute of waiver, though it will often be found as a consequence. Within the adjudicative process at any rate, it is enough that the defendant "renounces" a defence which is available to him and which is there for his benefit."

60 His Honour concluded at 474 that "waiver" in the sense relevant for the purposes of the particular appeal was not capable of being withdrawn. It was an unequivocal renunciation of the right to rely on the limitation offence.

61 Gaudron J at 480 - 481 considered the issue whether "waiver" existed independently of estoppel. In Wilson v McIntosh (supra) at 220 the Privy Council approved a statement by Darley CJ in Phillips v Martin (1890) 11 LR(NSW) 153 at 158 that "... a man by his conduct may by his conduct waive a provision of an Act of Parliament intended for his benefit". The waiver of the right to plead the statute of limitations is an obvious example.

"A party to litigation who has failed to object that a condition attaching to the exercise of jurisdiction has not been satisfied or that the proceedings were irregularly instituted may, by reason of his subsequent participation in the proceedings, be precluded from later raising the defect. See, [for example], Broad v Perkins [(1888) 21 QBD 533]; In re Jones v James [(1850) 19 LJ QB 257]; Moore v Gamgee [(1890) 25 QBD 244]. So too, a litigant may be precluded from raising a matter going to the disqualification of the person constituting the court if, with knowledge of the disqualification, he participates in the proceedings without objection."

63 The requirement of knowledge was repeated by her Honour at 484 as follows:

"Perhaps there is a principle of wider application, but it is clear that a party to litigation will be held to a position previously taken (that position having been intentionally taken with knowledge) if, as a result of that earlier position, the relationship of the parties has changed. The changed relationship, in the terms used in Phillips v. Martin and approved in Wilson v. McIntosh, constitutes an 'equit(y) which (the other) has ... raised'."

64 Brennan J made it clear that waiver involves the knowing abandonment of the relevant right, except where the jurisdiction of a Court to entertain proceedings is conditioned on the commencement of proceedings within a specified time. Mason CJ accepted that it was possible for the statutory provisions, the subject of Verwayen, to be deprived of their effect by waiver, although he concluded that the case had not been made out on the facts. Deane J decided the case on the basis that waiver had been subsumed into a general doctrine of estoppel by conduct, pointing out, as has been seen, that "waiver" should be confined to cases where the act of the alleged waiver was of itself directly operative to waive a right or entitlement, without the need for proof that the other party had acted upon the basis that the right was no longer asserted. Dawson J held that there was no distinction in principle between waiver and estoppel. His Honour dealt with the case as one of estoppel rather than waiver in the sense of waiving a defence under a statute of limitations. Toohey J concluded that in the context of Verwayen involved election and for that reason differed from estoppel. Waiver involved a deliberate choice or act by a defendant not to rely on a particular defence or argument. Gaudron J held that a failure to take a particular point or plead a particular defence may be taken to have waived the point.

65 Gaudron J agreed at 487 with Mason CJ that the substantive doctrine of estoppel permitted a Court to do what is required to avoid detriment and does not, in every case, require the making good of the assumption.

66 Section 93C is headed "Limit on Powers of Courts". This implies that the limitation is one upon power which is suggestive of a limit upon the jurisdiction to award damages otherwise than in accordance with the statute. The limitation is in the nature of a limitation on the amount and scope of the award of damages at common law where there is a liability established for negligence. The preceding provision of the Act, namely, s 93B is headed Application of this Division and provides that:

"(1) This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if −

(a) the disability was caused by the negligence or other tort of the worker's employer_;_ and

(b) compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22.

(2) This Division applies even if the damages resulting from the negligence or other tort of the worker's employer are sought to be recovered in an action for breach of contract or other action.

(3) This Division does not apply to the awarding of −

(a) damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies;

(b) exemplary or punitive damages_;_ or

(c) damages of a class that is excluded by the regulations from the application of this Division.

(3a) This Division does not apply to the awarding of damages if the disability results in the death of the worker.

(4) A reference in this section to the worker's employer includes a reference to a person for whose acts the employer is vicariously liable."

"In this Division −

'AMA Guides' means the edition of the Assessment of Disability Guide published by the Western Australian Branch of the Australian Medical Association Incorporated which is prescribed in the regulations;

'damages' does not include −

(a) any sum required or authorised to be paid under an award or industrial agreement within the meaning of the Industrial Relations Act 1979;

(b) any sum payable under a superannuation scheme or any life or other insurance policy_;_ or

(c) any amount paid in respect of costs incurred in connection with legal proceedings."

68 In my opinion, negligence, as a form of tort liability, exists primarily to compensate the victim by compelling the wrongdoer to pay for the damage done to the victim: Fleming, The Law of Torts (8th Ed) pp 102 - 104.

69 The test, or at least one significant aspect of the relevant test, is whether the limitation is one which goes to jurisdiction rather than one which is merely procedural. In my opinion, the defence under s 38 of the Limitation Act 1935 (WA) may be negatived by the operation of the equitable defences of waiver or estoppel in respect of the various periods of limitation which are provided in the Limitation Act. The most common is that in s 38(1)(c) in which actions founded on a contract or tort must be commenced within 6 years of the cause of action arising. The expiry of the limitation period bars the remedy, but not the right. In such a case, the remedy is not barred unless and until the defendant pleads the statute and presents the relevant evidence: Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 at 405 per Donaldson LJ; Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159 at 175 per Malcolm CJ (with whom Kennedy J agreed). The cases referred to include Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] 1 VR 27, in which the Court of Appeal of Victoria held that it was no part of a cause of action that time had run under a statute which merely bars the remedy, as is the case under s 38 of the Limitation Act. The plea of the statute in such a case is a plea in confession and avoidance, so that the defendant who pleads the statute is required to plead and prove that the action was commenced outside the limitation period; Pullen v Gutteridge at 76 per Booking, Tadgell and Hayne JJ.

70 With respect, I agree with the analysis by Heenan J of the decision of the High Court in Verwayen (supra) which has led his Honour to conclude that the character of the statutory defence in Pt IV Div 2 and, in particular, s 93C of the Act are provisions which are procedural in character, having the effect of barring the remedy rather than the right or, as it has been put, "non-jurisdictional" and, consequently, capable of being met by the doctrines of waiver or estoppel. The effect of the relevant provisions is not to deprive the Court of jurisdiction to award damages in the circumstances of this case, but to place limitations upon the remedy of damages at common law.

71 In my opinion, however, the difficulty with the application of waiver in the present case is that there was no evidence that the respondent knew at any material time that the applicant's Form 22 had been filed two days late until the point was taken by the Director, some considerable time after the date of filing and after 22 March 2001, when the Review Officer determined that the applicant's relevant level of disability was not less than 16 per cent. It was not the respondent employer who took the point, but the Director of his own motion. There was no evidence that the respondent employer was aware that the Form 22 had been filed out of time. Consequently, in my opinion, there was no basis for the application of the defence or doctrine of waiver as there was no evidence before the Court that the respondent employer knew that the Form 22 had been filed out of time until the point was taken by the Director.

72 So far as the Director and the respondent are concerned, the applicant has raised for determination the question whether the conduct of the parties, including the Director and the respondent, has had the effect that the failure to file the Form 22 cannot now be relied upon by either the Director or the respondent.

73 As Heenan J has pointed out, the limitations and constraints imposed by the legislation on the rights otherwise available to the persons whose rights and liabilities are dealt with by the legislation can only abrogate those rights by statutory provisions expressed by clear words or necessary implication: Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 77 ALJR 40. In that case at [11], Gleeson CJ, Gaudron, Gummow and Hayne JJ held that statutory provisions are not to be construed as abrogating important common law rights in the absence of clear words or necessary implication to that effect: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304 per O'Connor J; and Baker and Campbell [1983] HCA 39; (1983) 153 CLR 52; Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1; Coco v The Queen [1994] HCA 15; (1993) 179 CLR 427; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501. McHugh J expressed a similar opinion at [43] - [44].

74 Clearly, the right to claim damages for personal injury caused by the negligence of another is an important common law right which falls into the relevant category covered by the High Court decisions to which I have referred. This was recently confirmed by the High Court in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 78 ALJR 161, which was concerned with the interpretation of the amendments to the Workers' Compensation and Rehabilitation Act 1981 (WA) and the effect of the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) ("the 1999 Act"), s 93D in the context of the Interpretation Act 1984 (WA), s 37(1) and (2).

75 In July 1998, Dossett applied to the District Court for leave to commence common law proceedings to recover damages in respect of an employment injury. While the application was pending, the 1999 Act received the Royal Assent. This imposed more restrictive conditions on the award of common law damages, but contained transitional savings provisions. The District Court held that the 1981 Act as amended applied to the applicant's application so that the Court had no power to grant leave to commence proceedings under the former provisions. This decision was upheld by the Full Court, but was overruled by the High Court. McHugh J decided the case on the basis that the transitional provisions in the amending act did not override or exclude s 37(1) or (2) of the Interpretation Act 1984 (WA), which applied notwithstanding any express saving provision in the amending act. It followed that the appellant in that case was entitled to proceed with his application under the former provisions. This result was consistent with the decision of the Full Court in Toolan v Metro (Perth) Trust [2001] WASCA 131; (2001) 25 WAR 1.

76 In Dossett v TKJ Nominees Pty Ltd (supra) at [59], Kirby J said that nothing in the Workers' Compensation Act either before or after the 1999 Act abolished the appellant's common law rights. All that happened was that the enforcement of those rights was made the subject of procedural conditions both before and after the 1999 Act. Section 93C provided that if Div 2 applied, a Court was not to award damages to a person contrary to the Division. His Honour described at [61] "the procedural condition" for leave in s 93D as "the procedural gateway through which the appellant had to pass before being entitled to commence proceedings for damages in the District Court".

77 It is accepted that, in general, where proceedings have been commenced without leave, such leave may be granted nunc pro tunc, namely with retrospective effect. A recent example is referred to by Heenan J, namely, Mealing v P Chand [2003] NSWCA 205; (2003) 57 NSWLR 305. That case was concerned with s 151D of the Workers' Compensation and Rehabilitation Act 1987 (NSW), which provided that a person to whom compensation under the Act was payable was not entitled to commence proceedings for damages against the employer more than three years after the date of the injury was received, except with the leave of the Court in which the proceedings are taken. It was held that an extension of time could be granted after proceedings had been commenced without such leave in order to validate the proceedings retrospectively (ie by making an order nunc pro tunc). This course was open because the provision was characterized as "procedural": cf Re Sydney Formworks Pty Ltd (1965) 82 WN (Pt 1) (NSW) 558; [1965] NSWR 646 in which such leave was granted in respect of existing proceedings after the limitation had expired.

78 Handley JA (with whom Meagher ACJ and Young CJ in Equity agreed) noted that a different construction had been adopted with respect to statutes which in terms required the order granting leave to commence proceedings out of time to be made before a certain date, such as Clarke v Bailey (1993) 30 NSWLR 556. Reference was also made to Bingham v England (1996) 17 WAR 226 as "in the same category". That was a decision on s 7(2)(c) of the Fatal Accidents Act 1959 (WA) in which Kennedy ACJ (with whom Ipp J agreed) at 233 - 234 referring to Clarke v Bailey (supra); Bestobell Overseas Ltd v Carden [1988] VicRp 80; [1988] VR 891; and Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348, made it clear that the decision was based on the interpretation of s 7(2)(c) of the Act. This provided that an application could be made to the Court for leave to bring an action "or any before the expiration of six years after the death of the person in respect of whose death the cause of action arose". The primary requirement in s 7(1) was that "every action under this Act shall be commenced within 12 months after the death of the person in respect of whose death the cause of action arose". Section 7(2)(d) provided that, if the Court considers that the delay was occasioned by mistake or any other reasonable cause, or that the prospective defendant is not materially prejudiced in his defence or otherwise by the delay, the Court may, if it thinks it just to do so, grant leave to bring the action subject to such conditions as it thinks appropriate.

79 In Bingham v England (supra) at 233 - 234, Kennedy J dealt with an argument that the words in s 7(2)(c) of the Fatal Accidents Act "at any time before the expiration of six years from the date of death of the person in respect of whose death the case of action arose", referred back to, and placed a time limitation only upon the making of the application, so that if leave were then granted, fresh proceedings could be brought. The identical argument to the contrary had been rejected by Burt CJ in Stevens v Motor Vehicle Insurance Trust [1978] WAR 232 at 234 with whom the other members of the Court agreed. The application for leave had to be brought within the six-year period. Once that period expired, the cause of action was extinguished. The Court could not, by ante-dating an order, confer upon itself a jurisdiction which it did not otherwise possess: Re Keystone Knitting Mills' Trademark [1929] 1 Ch 92 at 107, 108.

80 As indicated earlier in these reasons, the Director had no power to extend the time for compliance with the requirement that the applicant produce the necessary evidence of his degree of disability to the Director no later than 14 December 2000. The respondent was not aware that the time limit had not been complied with. It follows that a condition precedent to the exercise of the powers of the Director had not been satisfied. This affected the power of the Director to refer the

matter to a Review Officer. Given the statutory framework under which the Director was operating, his purported reference of the matter to a Review Officer was made without statutory authority and for that reason invalid and incapable of conferring jurisdiction or power on the Review Officer.

81 In my opinion, in the context of s 93C, compliance with the procedural conditions precedent to the award of damages contained in the relevant provisions in Div 2 to which I have referred is a pre-requisite to the award of damages. It follows that I would discharge the orders nisi for the writs of certiorari and mandamus.

82 As previously indicated, however, I have reached the conclusion that, on the facts, the lack of proof of knowledge on the part of the respondent of the relevant facts was fatal to the case asserting waiver against the respondent both in respect of certiorari and mandamus. For those reasons I would discharge each of the orders nisi.

83 TEMPLEMAN J: In Western Australia there is a restriction on the common law right of workers injured in the course of their employment, to recover damages from their employers. The restriction is imposed by s 93E(6) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). In substance, the subsection provides that damages can be awarded only if:

(a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or

(b) the worker has "a significant disability" and has elected to retain the right to seek damages and the election is registered in accordance with the regulations.

A worker has a "significant disability" if that disability has been agreed or determined to be not less than 16 per cent and that agreement or determination has been recorded in accordance with regulations: s 93E(4).

84 In the present case, Peter Norman Cross, an employee of Boral Resources WA Ltd ("Boral") claimed to have sustained an injury to his right elbow in the course of his employment in May 1996. Subsequently, Mr Cross received weekly payments of workers' compensation.

85 Apparently in the belief that his disability was greater than 16 per cent, Mr Cross wanted to elect to retain the right to claim

damages from Boral. On 5 January 2000, he purported to make an election by lodging a Form 25. That was the last day on which it would have been possible to elect, if Mr Cross' disability had been determined (at greater than 16 per cent) and recorded. It was the so-called "termination date" for workers such as Mr Cross, whose weekly payments of compensation had commenced before 5 October 1999, the day on which the Workers' Compensation and Rehabilitation Amendment Act 1999 received the assent: s 32(8) of the Workers' Compensation and Rehabilitation Amendment Act 1999, as amended by s 3 of the Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999.

86 Mr Cross' degree of disability had not, however, been determined by the termination date: it was in dispute. Mr Cross had referred the dispute to the Director of the Conciliation and Review Directorate on 16 December 1999, pursuant to s 93D(6) of the Act, by lodging a Form 22 and the relevant medical evidence.

87 On 25 January 2000, the Director rejected Mr Cross' purported election of 5 January. The Director took that course because of Mr Cross' failure to comply with Regulation 19M of the Workers' Compensation and Rehabilitation Amendment Regulations (No 11) 1999. The Regulation provided that the election could not be made unless the degree of disability had been agreed or determined to be not less than 16 per cent. As I have noted above, there had been no such agreement or determination as at the purported election date.

88 The rejection was fatal to Mr Cross' claim for damages. That is because, by then, it was too late for him to elect, pursuant to s 93E(6) of the Act. This provision applied when the degree of disability was still in dispute on the termination day. It enabled a worker to elect within 14 days after he had been given notice by the Director that an agreement or determination had been recorded. But in order to avail himself of that opportunity, it would have been necessary for Mr Cross to produce the medical evidence relating to his disability "not less than 21 days before the termination day": s 93E(6)(a).

89 Having regard to s 61(1)(f) of the Interpretation Act 1984, Mr Cross should have produced that evidence to the Director on or before 14 December 2000. But he did not do so. But as I have noted above, the evidence was produced on 16 December.

90 Despite the lodgement being out of time, the Director acted on it. He implemented the dispute resolution procedures. This culminated in a hearing before a Review Officer, who, on 22 March 2001, determined that the level of Mr Cross' disability was not less than 16 per cent.

91 The Director wrote to Mr Cross' solicitors on 29 March 2001, to inform them that the determination had been made and that he had received it.

92 This appeared to entitle Mr Cross to make a further election, which he did on 2 April 2001, within the time period prescribed by s 93E(6).

93 However, on 20 April, the Director rejected his election on the ground that the form 22 and supporting medical evidence lodged on 16 December 1999 had not been lodged less than 21 days before the termination day.

94 If, on or about 16 December 1999, the Director had declined to accept the papers lodged on that date (as he should have done), I do not think Mr Cross would have had any ground for complaint. The legislation, although convoluted and the subject of frequent amendments, set clearly ascertainable time limits. Mr Cross does not suggest that either the Director or the Court has any power to relax or extend them. Nor does he suggest that the legislation is invalid: cf Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

95 I say the Director should have declined to accept the papers lodged by Mr Cross on 16 December 1999, because the date given for the commencement of weekly payments on the Form 22 was "prior to 5/10/99". That being so, it should have been immediately apparent to the Director that Mr Cross could never be in a position to make an election. It is, I think, regrettable that (so far as I can see from the correspondence made available to us), the Director has offered no explanation or apology to Mr Cross for his oversight.

96 However, Mr Cross focussed his attention on Boral. He contends that because Boral did not take any point about the late lodgement of his Form 22, and then participated in the review proceedings in the usual way, Boral must be taken to have waived the requirement that the form be lodged 21 days before the termination date: particularly as the decision of the Review Officer became final.

97 Standing in the way of that contention is the decision of this Court in Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223. There, in circumstances not relevantly distinguishable from the present case, Anderson J, with whom Wallwork and Steytler JJ agreed, said, at par 21:

"Counsel for the worker also submitted that failure to observe the time limit prescribed by s 93E(6) is not fatal. He contended that the time limit was merely a procedural rather than a mandatory requirement. Whether this language still means anything in Australia is very doubtful since Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, but I take the submission to be that compliance with the requirements as to when or within what period an election is to be made does not condition either the right to seek damages at common law or the authority of the Court to award damages. This is, of course, a matter of construction and I do not think that the Act can be so construed. The scheme of Div 2 of Pt IV is generally to prohibit courts from awarding damages in work accident cases and then to precisely define the circumstances under which the right to seek damages may be retained. There must be a certain level of disability (specified by reference to exact percentage points), there must be a positive election to retain the right, the election must be made in a prescribed manner and form and it must be made within a specified period of time, the expiration of which is expressed so as to be precisely ascertainable. In other words, if I may borrow Lord Goff's analogy in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 754, the legislation locks the gate to this field of common law damages and then fashions the key which alone is capable of turning the lock."

98 I have had the advantage of reading in draft, the reasons to be published by EM Heenan J, in which his Honour points out that in Ex parte TNT Australia Pty Ltd, the Court did not examine the criteria by which it may be determined whether the time constraints imposed by s 93E(6) of the Act are jurisdictional in character, or procedural, and hence, arguably susceptible of waiver.

99 But as Anderson observed, ultimately, the question is one of construction. And here we have, in s 93C of the Act, a jurisdictional limit in the following terms:

"If this Division applies a court is not to award damages to a person contrary to this Division."

This is a reference to Division 2, which imposes constraints on the award of damages at common law. It does so (in part) by providing limitation periods such as that prescribed by s 93E(6).

100 In my view, it is not necessary to consider the ambit of the constraint imposed by s 93C. It is, I think, sufficient to say that in the present case, the division does apply and that the applicant did not act within the relevant limitation period. It follows that the Court has no jurisdiction to award damages. I respectfully agree with Anderson J (at par 13) that 'neither the consent of the parties nor unauthorised administrative act of the Director can overcome that provision'.

101 In any event, the Court (even one comprising of five judges) should not depart from an earlier decision unless convinced that the decision was wrong, or unless there is some other compelling reason to do so: see Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, per Steytler J.

102 I am not persuaded that the decision in Ex parte TNT Australia Pty Ltd was wrong: and I see no other compelling reason to depart from it. Indeed, the Court has no evidence which explains why Mr Cross did not lodge his Form 22 until 16 December 1999. Of course, he had only a relatively small window of opportunity. The Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999, which imposed the time constraints, received the Assent on 5 November 1999. Mr Cross therefore had only a little over five weeks in which to obtain the necessary medical evidence and lodge his Form 22 with the Director. We do not know whether he experienced any difficulty in attending to these matters.

103 No do we know how Mr Cross became aware of the need to lodge his materials; nor whether he was given any professional advice and if so, whether it was correct. We do not know whether he knew about the possible consequences of late lodgement when the review proceedings were in train. We do not know why he delayed for so long after suffering his injury in 1996, in seeking to ascertain his degree of disability in order to make an election. We do not know whether any others are in a similar position to Mr Cross. In relation to that matter, I note the statement in the letter dated 4 April 2001 from Mr Cross' solicitors to the Director that:

" ... we understood at the time that the regulations ... were gazetted (retrospectively), you indicated that Form 22's filed in or about 14 December 1999 would continue to be accepted

as complying with the regulations. Can you please clarify if this in fact was a decision made in 1999, or whether your decision was in fact that any Form 22 filed after 14 December 1999 was caught by the provisions referred to in your letter, if the termination date was 5 January 2000."

104 The Director did not answer the question in his reply to that letter.

105 In all the circumstances, and for the reasons set out above, I have come to the conclusion that the application should be dismissed.

106 WHEELER J: The facts of this matter are set out in the reasons of other members of the Court, and I do not repeat them. The argument took a very unsatisfactory course. When the matter was first heard by a coram of three, it appeared that the applicant wished to challenge the validity of reg 19M, which had been the subject of some observations in earlier cases. Once the Court had reconstituted as a coram of five, the applicant withdrew that challenge, and the Court again reconstituted as a court of three. During the course of argument, it appeared that the applicant took issue with the decision in Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223, and we again reconstituted as a coram of five. During the course of argument following that reconstitution, the parties' counsel appeared to me to be somewhat reluctant to grapple with the issues in TNT, and they dealt with that case in a manner which was plainly not well prepared for the issues arising. The intervenor's counsel provided some assistance, but had no notice of the question arising in relation to TNT. I mention these matters because they afford an illustration of the difficulties the Court often faces in such cases, to which I return at the end of my reasons.

107 I have had the advantage of reading in draft the reasons for decision of Pullin J. I agree with them, save in respect of the issue of waiver, about which I make some brief observations below, and I would therefore discharge the order nisi. I have not attempted, in these reasons, to distinguish between waiver and estoppel: there is considerable overlap between these concepts (see Commonwealth v Verwayen (1990) 170 CLR 394, at 406-7 per Mason CJ, 449-50 Deane J, 451 Dawson J, 484 Gaudron J, cf 470 per Toohey J).

108 As to waiver and estoppel in relation to this division of the Act, in the circumstances of the present case it is my view that no question of estoppel or waiver can arise. That is because, as the reasons of other members of the Court make plain, it was the Director himself who refused to register the applicant's election on the basis of non-

compliance with the Act and regulations. The Director is the statutory authority charged with registering a valid election. If the election was made contrary to the provisions of s 93E(6)(a), it was not an "election" which the Act requires the Director to register. Estoppel cannot be invoked in order to compel a statutory authority to act contrary to or in excess of the statutory powers confided to it. That principle is, in my view, firmly established. The relevant decisions, and a brief discussion of the principle underlying them, may be found in Enoka v Shire of Northampton (1996) 15 WAR 483 at 494, per Steytler J.

109 These are proceedings in which, although the respondent is the employer, the writ is sought against the Director and seeks to quash his decision to act in accordance with the conditions governing the exercise of his statutory power. It would be contrary to principle to permit the doctrines of waiver or estoppel to be invoked in those circumstances, so as to require the Director, in effect, to act contrary to the terms of the statute and the regulations.

110 I would wish to reserve for another day the question of whether, had this been an application by an employer seeking to quash the Director's decision to register an election in breach of the statute, doctrines of estoppel or waiver might be invoked. The reasons of the Chief Justice and of EM Heenan J point to a number of matters which might lead to the conclusion that in appropriate circumstances those doctrines could be invoked. Further, where certiorari is sought, the considerations underlying notions of waiver and estoppel overlap with the discretionary considerations which will sometimes influence a court to refuse relief, such as undue delay and "lying by" (see eg R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122).

111 On one view, the decision of this Court in Re Monger; Ex parte TNT Australia Pty Ltd (supra) stands in the way of any application of doctrines of waiver or estoppel in relation to this legislative scheme. However, I am not persuaded that the rather sweeping dictum in that case that the "ultimate question is whether the processes that have taken place are in compliance with Div 2 of Pt IV" (Anderson J par 13) should necessarily be taken to apply to every process referred to in that division, in all circumstances. It is true that s 93C provides that if the division applies a court is not to award damages "contrary to this Division". However, the Parliamentary intention as to what that expression means is to be read in the context of the Act as a whole.

112 In that connection, it appears to me to be significant that s 93E is the section headed "Restrictions on awarding of damages and payment of compensation" and that subsection (3) of that section provides that "Damages can only be awarded if" certain conditions are satisfied. It is at least arguable, in my view, that when s 93C speaks of the award of damages "contrary to this Division" it refers to an award contrary to s 93E(3).

113 It may also be arguable, and this is a matter on which I express no view, that a close examination of the legislative scheme might reveal an intention that, in considering whether the conditions set out in s 93E(3) had been satisfied, a court was not intended to go behind an act of the Director or of a review officer which was apparently valid on its face. At least on one view, it is now the "orthodox judicial position" that no decision, even one made contrary to or in the absence of statutory pre-conditions, is void from the outset; rather, it requires a judicial determination of some kind to set it aside (see Aronson & Dyer, Judicial Review of Administrative Action, 2nd ed, p 500). The Act itself, of course, contains provision for the review of certain decisions (eg s 84ZN and s 84ZW). In addition, where it is not expressly excluded, the remedy of certiorari will apply. As is usual, the appeal provisions must be invoked within a limited time (s 84ZN(3) and s 84ZY) and, as I have already noted, the application for certiorari is subject to refusal on discretionary grounds, including the ground of delay.

114 One can see an argument that it is unlikely, in that context, that the legislature intended that a court, the jurisdiction of which was apparently regularly invoked (in that an agreement or determination had been recorded or an election had been registered) should be required to consider the question of whether all of the various processes contained within Division 2 had been properly undertaken, or even whether the agreement or determination had been recorded or the election registered in accordance with all the detail of the regulations. In particular, it seems to me to be an open question whether the Court should be required to do so at the instance of a party which had not previously taken any step to assert the invalidity of any of the various processes undertaken.

115 There is a larger issue which arises from the reasons of the Chief Justice and of EM Heenan J. Each of their Honours has held that s 93C of the Act is procedural, or "non-jurisdictional" (per the Chief Justice, [70], p 28). That view casts doubt upon a number of earlier decisions of this Court which were not the subject of direct challenge in the present case. Among them are Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 (par 30 and par 31, Malcolm CJ; Wallwork and Owen JJ agreeing) and Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 (pars 30, 43, 44 per Anderson J; Malcolm CJ, Wallwork and Templeman JJ agreeing). In my respectful view, each of those decisions is wrong, and each should be reconsidered, not only because of the conclusions reached by Malcolm CJ and EM Heenan J in the present case, but for other reasons which I briefly outline below. I should add that, since drafting these reasons, I have read an outline of proposed amendments to the Act, which are presently before Parliament. If the Act should be significantly amended, it may be that the need for reconsideration would fall away, but that is a question with which it is not at present necessary to deal.

116 So far as United Construction is concerned, there are effectively two leading judgments. The first is that of Anderson J. His Honour's analysis of the questions "arising in the review" looks primarily to s 84Z, rather than s 93D. The latter reveals that "the question" which is referred to the review officer is the degree of disability (ss 93D(7), (8), (10)). At that stage, the original medical opinion referred to in s 93D(6) may not be relied upon by any of the parties. It is a very odd result if, when one gets to the stage where the original s 93D(6) opinion may be entirely irrelevant, and the review officer is to act informally, economically and without regard to legal forms, the review officer is nevertheless required to determine the extremely technical question of whether or not there had been a valid referral by the Director, based upon that earlier medical opinion. Paragraphs 44 and 45 of his Honour's reasons suggest that, had he focussed on the issues identified by s 93D, his conclusion may have been different.

117 Fitzgerald AJ appears to have reasoned differently. Although it is not entirely clear, his Honour's par 67 and par 68 appear to accept the proposition that the review officer's only power is to decide the degree of disability, and that he has no power to decide whether the dispute has been validly referred to him. If that is so, I am unable to see how the Compensation Magistrate, on an appeal from proceedings in which that latter question could not have been canvassed, could have had power to decide whether the referral was "valid". The authorities to which his Honour referred establish only that a decision which is made without jurisdiction may be the subject of an appeal. If therefore, in United Construction, the review officer had erroneously considered he had power to review the Director's decision to refer the dispute to him and had on that basis not considered the merits, the Compensation Magistrate would be able to determine the appeal, but only by holding that the review officer lacked such power (as in Clisdell v Commissioner of Police (1993) 31 NSWLR 555), not by going on to substitute his own views in respect of a matter which the review officer should not have decided.

118 As it appears to have been a further matter influencing his Honour's decision, I would add that I doubt that the Act would exclude all curial supervision of decisions made by a review officer without procedural fairness (at par 69 United Construction). It would appear to me that a question of law concerning the effect of s 84ZA(2) would be involved in such a case, triggering potential appeals pursuant to s 84ZN(2) and ultimately s 84ZW.

119 So far as Dutch is concerned, the leading judgment is that of Malcolm CJ. There are, in my respectful view, three matters of difficulty in it. First, in relation to paras 28, 30, 39, 42-48, and 52 in particular, there appears to be a running together of the concepts of medical evidence indicating a degree of disability, and medical evidence indicating that a person (a medical practitioner) has formed an opinion about a degree of disability. The latter is the statutory concept, while the former appears to be the focus of the paragraphs I identify, which take as their starting point the proposition that there must be "medical evidence" justifying the doctor's opinion, for otherwise there would be a "failure to establish that the degree of disability was not less than the requisite level" (par 28, emphasis supplied).

120 Second, there is an apparent inconsistency between the part of his Honour's reasons containing these views, and later paragraphs 53-62. These later paragraphs appear to accept the view that s 93D(6) "... requires the provision of a medical report which, on its face, states the medical practitioner's opinion as to the degree of disability .... It is not a requirement that the Director form that opinion ..." (par 54), and that "... the Director is entitled to accept at face value medical evidence in the form of a medical report, which indicates that the degree of disability is not less than a certain level ..." (par 61). I have difficulty in reconciling these paragraphs with the earlier views that something by way of support is required in the opinion, from which the Director can "confirm whether it indicates a degree of disability not less than the relevant level ..." (par 52). A similar difficulty appears to exist in relation to par 45 and par 62, concerning the question of whether the medical evidence must make reference to the relevant statutory criteria.

121 Third, there is what appears to me to be an assumption, both in the reasons of Malcolm CJ and of Owen J, that because s 93D(6) performs a screening function, it must necessarily be a function of some complexity. Having regard to the function of s 93D(6), which appears

to be simply to screen out frivolous claims (par 52 Dutch), and to set in train a process of consultation (par 112 Dutch) and of review (in which the original opinion may well play little part) I would consider that it is a preferable view that s 93D(6) requires the Director only to be satisfied that a medical practitioner has been prepared to indicate that he holds a particular view.

122 I am conscious of the fact that these remarks about earlier decisions are, in effect, long and detailed obiter dicta. I have been reluctant to embark on them, but I have done so for the following reasons. It appears to me that the views expressed by Malcolm CJ and EM Heenan J have implications for earlier decisions. While those issues do not arise directly in my own reasons, I considered it important that they should not pass unnoticed. It has, in my experience, been a feature of litigation relating to this Act that argument is of variable quality, and that often the Court is not advised of all decisions relevant to issues it has to decide. That has led to decisions which are inconsistent with each other, or which can be reconciled only with great difficulty. Two things flow from that state of affairs, in my view. One is that much of the jurisprudence in this area requires reconsideration. The other is that, to the extent that there are differing approaches to issues arising under this Act, the differences should be identified as clearly as possible, so that they are brought to the attention of the Court in future cases.

123 However, in my view, these difficult questions can await consideration in a case in which they are properly before the Court. For present purposes, as I have noted, I agree with Pullin J that the question is essentially a relatively straightforward one of construction of these portions of the Act and of the regulations.

124 PULLIN J: This is the return of an order nisi for a writ of certiorari directed to the Director of the Conciliation and Review Directorate ("Director") to quash the Director's decision not to register elections the applicant claims to have made under s 93E(3)(b) of the Workers Compensation and Rehabilitation Act 1981 ("Act"), and a writ of mandamus compelling the Director to register the elections.

125 The dispute in this case requires a consideration of the provisions of Pt IV Div 2 of the Act, and Regulations which relate to that Division. The Division contains a set of statutory provisions which, in certain circumstances, will work as a constraint on the award of common law damages. Section 93C states that if the Division applies, a court is not

to award damages to a person contrary to the Division, and s 93E(3)(b) provides that damages can only be awarded if:

"the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."

126 The expression "significant disability" is given meaning by s 93E(4) which provides that:

"For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."

127 I should pause at this point to note that the election of the worker to seek damages involves a process separate from the process leading to the recording of an agreement or the determination that a worker has a significant disability. Whether a worker has a significant disability or not is a matter for agreement between the worker and employer, or for determination in accordance with s 93D and the provisions of Pt IIIA of the Act. The process whereby a worker makes his election and the Director registers the election involves compliance by the worker with other provisions in the Act and Regulations.

128 In this case it can be assumed that the applicant wishes to proceed with a claim for damages but no proceedings have yet been commenced. There has been a determination that the applicant has a significant disability.

129 The issue has arisen as to whether the applicant has "elected in the prescribed manner" to retain the right to seek damages and whether the election should be registered. Indeed, the applicant claims that he has made the election twice. The Director has made decisions refusing to register either election, and the question is whether those decisions, or one of them, should be quashed and whether the Director should be compelled to register one or other of the elections.

130 The role of the Director in registering an election is not set out in Div 2. The Director is, however, the person responsible for this task because of the following provisions. Section 104A of the Act established a Conciliation and Review Directorate consisting of the Director and other staff. Section 93G of the Act provides that:

"Regulations may provide for -

...

(b) the form and lodgment of elections under section 93E(3)(b);

(c) the registration by the Director of elections under section 93E(3)(b) if an agreement or determination for the purposes of section 93E(4) has been recorded, and the power of the Director to refuse to register an election if not satisfied that the worker has been properly advised of the consequences of the election; ..."

131 Regulations have been made. Regulation 19M reads:

"(1) An election under section 93E(3)(b) of the Act -

(a) is made by completing an election form in the form of Form 25 in Appendix I and lodging it with the Director; and

(b) cannot be made unless -

(i) it is agreed that the degree of disability is not less than 16%; or

(ii) it is determined that the degree of disability is not less than 16%.

(4) Subject to subregulation (5), on the day on which the Director receives the election form the Director is to -

(i) under regulation 19K(2)(a) the agreement (if any) accompanying the election form; or

(ii) under regulation 19L(2)(a) the determination (if any) accompanying the election form;

(b) register the election in a register kept for that purpose; and

(c) complete the relevant section of the election form and give a copy of it to the worker and the employer.

(5) The Director may refuse to register an election if not satisfied that the worker has been properly advised of the consequences of the election.

(6) This regulation applies to an election under section 93E(3)(b) of the Act that is commenced on or after the day on which the Workers' Compensation and Rehabilitation Amendment Regulations (No. 11) 1999 come into operation."

"(5) Subject to subsections (6) and (7), if weekly payments of compensation in respect of the disability have commenced an election cannot be made under subsection (3)(b) after the termination day.

(6) Despite subsection (5), if -

(a) medical evidence complying with section 93D(6) was produced to the Director not less than 21 days before the termination day; and

(b) although a question of whether the degree of disability is not less than 16% was referred to the Director under s 93D(5) not less than 21 days before the termination day, at the end of the seventh day before the termination day the Director has not given the worker notice in writing that an agreement or determination of the question has been recorded,

an election can be made under subsection (3)(b) within 14 days after the Director gives the worker notice in writing that an agreement or determination of the question has been recorded."

133 The "termination day" was defined in s 93E to mean the day that was six months after the day on which weekly payments commenced. That caused transitional problems when Div 2 was introduced into the Act, because for many workers weekly payments would have commenced more than six months before the present form of Div 2 became law, which would have meant that those workers had no opportunity to make an election. As a result, there was a provision, namely s 32(8) of the Workers Compensation and Rehabilitation Amendment Act 1999, which, in effect, provided that for those who had been in receipt of weekly payments prior to the present form of Div 2 becoming law, namely 5 October 1999, the termination day would be postponed for three months after the "assent day". The "assent day" was 5 October 1999, and workers caught by the change of legislation effectively gained an extension of the termination day to 5 January 2000. A further extension of time for making an election was allowed in the circumstances mentioned in s 93E(6) and s 93E(7). Section 93E(7) is not relevant to this case. If a worker wished to rely on s 93E(6), then medical evidence complying with s 93D(6) had to be produced to the Director not less than 21 days before 5 January 2000 if the condition in s 93E(6)(a) was to be satisfied.

134 Section 93E(6)(a) referred to medical evidence complying with s 93D(6). Section 93D(6) required a worker to produce to the Director medical evidence as a condition of referral to the Director of the issue about the degree of disability (if the worker and employer cannot agree). By reg 19J, that referral had to be made in accordance with Form 22.

136 The facts are not in dispute. They are as follows:

(a) Some time before 5 October 1999, weekly payments to the applicant commenced. This date is significant because of the transitional provisions referred to above.

(b) For the purposes of s 93E(6)(a), 14 December 1999 was the last day for the applicant to produce the medical evidence referred to in that section.

(c) On 16 December 1999, the applicant lodged his Form 22 and produced with it accompanying medical evidence. If regard is had to s 93E(6)(a), then this production of medical evidence was two days late.

(d) On 5 January 2000, the applicant lodged a Form 25 election, stating that he elected to retain the right to seek damages, and asked that the election be registered.

(e) On 25 January 2000, the Director, in effect, refused to register the applicant's election. The reason given by the Director was that there had been non-compliance with reg 19M(1)(b), which states that the election could not be made unless there had been an agreement or determination that the worker had a significant disability. It is true that there had been no agreement or determination by that date.

(f) On 6 March 2001, there were proceedings before a Review Officer concerning the issue about the level of disability. The applicant and the employee were represented at this hearing.

(g) On 22 March 2001, a determination was made by a Review Officer that the applicant's relevant level of disability was not less than 16 per cent, which was therefore a determination that the worker had a "significant disability".

(h) On 29 March 2000, that determination was recorded by the Director in accordance with the Regulations.

(i) On 3 April 2001, the applicant lodged a further Form 25, stating that he elected to retain the right to seek damages ("second election").

(j) On 20 April 2001, the Director refused to register the second election. The reason given for refusing to register the second election was because the Director considered that the election could not be made after the termination day, and that the condition set down in s 93E(6)(a) had not been satisfied.

137 This purported election was within time, in the sense that it was not lodged after the termination day. 5 January 2000 was the termination day. The Director, however, refused to register this election because of reg 19M(3)(b). At one stage in the appeal, the applicant contended that this regulation was ultra vires the Act. The applicant, however, abandoned this argument. As a result, there can be no valid complaint about the Director's decision to refuse to register the election under reg 19M(4), because no election could be made because there was no agreement or determination about the degree of the applicant's disability. Furthermore, the Director was unable to record one or other of those events as he was obliged to do under reg 19M(4)(a). In my opinion, the Director was right to refuse to register this purported election.

138 The reasons given by the Director for refusing registration of this purported election were that the election was not lodged before the termination day and s 93E(6)(a) did not apply.

139 There is no dispute that the election made by the applicant was in the correct form. It was, however, an election made after the "termination day". Section 93E(5) states that an election cannot be made after the "termination day". However, s 93E(6) provides that "despite subsection (5)", an election "can be made" if the conditions set out in that subsection have been complied with. It is common ground between the parties that the condition in s 93E(6)(a) was not complied with.

140 The submission on behalf of the respondent is that s 93E(6)(a) not having been complied with, no election could be made and that the role of the Director was to decide whether there had been compliance with s 93E(6)(a).

141 To understand the issues between the parties, it is necessary to observe that the Director, having received the medical evidence referred to in s 93E(6)(a) on 16 December 1999, took the steps in s 93D, which resulted in a referral to a Review Officer for a determination of the question about the degree of the applicant's disability. The Review Officer conducted a hearing. The employer and applicant were represented at the hearing. The Review Officer determined the degree of disability at not less than 16 per cent.

142 Within the time stated in the last three lines of s 93E(6), namely within 14 days after the Director gave the applicant notice in writing that the determination of the Review Officer had been recorded, the applicant, on 3 April 2001, purported to make an election to retain the right to seek damages, and asked for it to be registered. The Director was then given the election form.

143 Regulation 19M, as I have set out above, commanded the Director:

(a) To record the determination accompanying the election form.

(b) Register the election in a register kept for that purpose.

(c) Complete the relevant section of the election form and give a copy of it to the worker and the employer.

144 The Director noted that there had been non-compliance with s 93E(6)(a). The Director advised the applicant that because the election was made after the termination date, and because the medical evidence referred to in s 93D(6)(a) was produced to him two days later than permitted by s 93E(6)(a), that there had been no valid election. The appellant submits that the Director was given no adjudicative role requiring him to determine whether the election was valid or invalid, and that by refusing to register the election, this is what he was doing.

145 Before I rule on that submission, I turn to consider the submission that the respondent employer is estopped from now contending that there was non-compliance with s 93E(6)(a) or that the employer "waived" a right it had to complain that election was invalid by reason of non-fulfilment of the condition in s 93E(6)(a). That submission suggests that the place to raise the non-compliance with the time limit in s 93E(6)(a) was in the proceedings before the Review Officer, and that the respondent's conduct, in participating in the process before the Review Officer and not raising the point, gives rise to waiver or estoppel. In my opinion, that is not so. There is nothing imposing any time limit for the commencement of the process leading to the determination of the extent of disability before a Review Officer. While s 93E(6)(a) imposes a time limit by reference to the production of medical evidence (which is necessary for the commencement of the process that leads to a determination by the Review Officer), it is, however, a time limit relating only to the right to make an election, and not a time limit relating to the commencement of proceedings to determine whether or not the applicant had a significant disability. By participating in the proceedings before the Review Officer, the respondent did not waive any right to argue that the election was invalid. That being so, no issue of waiver or estoppel arises. In consequence, it is not necessary to consider whether or not the decision of this Court in Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223 was correctly decided. The question about whether the decision in that case should be followed or not only arose if there were waiver or estoppel. The employer has done nothing which could amount to estoppel or which would constitute a waiver of any kind. Nor does it matter that there is an undisturbed determination that the applicant had a significant disability. That fact is irrelevant to the issue about whether the applicant complied with s 93E(6)(a), which he had to do if he wished to elect to retain the right to seek damages.

146 I now return to the submission that the Director erred in refusing to record the election. In my opinion, the Director was not obliged by reg 19M to record an election if it was an election made contrary to the provisions of s 93E(6)(a) of the Act. In my opinion, reg 19M commands the Director only to record a valid election. An election will only be valid under s 93E(6) if the conditions set out therein are met. The condition in s 93E(6)(a) is that medical evidence complying with s 93D(6) must be produced to the Director not less than 21 days before the termination day. That condition was not satisfied. The election was therefore invalid. It was not an election at all. The Director knew when the medical evidence was produced to him. It was a matter of record. He was not involved in any adjudication. The Director was therefore correct in his decision to refuse to register the purported election on 3 April 2001.

148 EM HEENAN J: This application was heard first by a bench of three Judges (Parker, Pullin and Heenan JJ) in October 2003 when the decision of the Court was reserved. After the hearing the Court discovered that the submissions of the applicant involved a challenge to an earlier decision of the Full Court, not cited at the hearing, and therefore informed the parties' solicitors that if this point was to be pursued a court of five Judges should be convened to hear further submissions devoted to that point. The applicant's solicitors advised that the point involving a challenge to an earlier decision of the court was to be pursued so arrangements were made to convene a bench of five Judges. In the meantime Parker J retired from the Court and thereafter took no further part in the proceedings. The court of five convened to consider the case again comprised Malcolm CJ, Templeman, Wheeler, Pullin and Heenan JJ. In the event the applicant did not maintain his submissions which involved a challenge to a previous decision of the Court, but as argument developed, the respondent raised an issue which required attention to be given to different decisions of the Full Court so that the bench of five was re-assembled to allow consideration of them. The Attorney-General sought and was granted leave to intervene in the proceedings to make submissions on those issues.

149 The issue arising on this application for certiorari and/or mandamus is whether the Director of Conciliation and Review was obliged to register, or at least to consider registering having regard to the special circumstances which affected this case, the applicant's

election to pursue a claim for damages at common law pursuant to the combined operation of subs 93E(3)(b) and (6) of the Workers' Compensation and Rehabilitation Act 1981.

150 In this case the election by the applicant worker, which was lodged for registration with the Director, was made and lodged within the 14 day time limit prescribed by subs 93E(6) after the Director had given the worker notice in writing that a determination of the question of whether his alleged degree of disability is not less than 16 per cent had been made. This determination of the degree of disability favourable to the applicant (that is, of a degree of disability not less than 16 per cent) was made after contentious proceedings before a Review officer, resulting from a determination of the existence of a dispute between the employer and the applicant (worker and the respondent employer) under, and in accordance with, the provisions of s 93E.

151 Notwithstanding the making of the election and its lodgement for registration by the worker within the period prescribed by subs 93E(6) of the Act, the Director relied on the late filing, on 16 December 1999, of the applicant's "Form 22" two days after the latest day allowable in December 1999 as the reason to decline to register the election under s 93E(6) on 3 April 2001. It is accepted by the worker that, in his particular case, because of the amendments to the legislation effected by the Amendment Act (No 3) 1999 the latest date for him to file the Form 22 was 14 December 1999.

152 The referral by a worker to the Director of a question of whether or not his alleged degree of disability is not less than the relevant level, where that is not agreed by the employer, is made under s 93D(5) of the Act. The mechanism for referring such a question to the Director is the lodgement by the worker of the so-called "Form 22", as directed by reg 19J(1) of the Workers' Compensation and Rehabilitation Regulations 1982. But it is the notice of election by the worker to retain the right to seek damages under s 93E(3)(b) or s 93E(6), rather than the notice of referral (Form 22) which usually must be filed before the termination day.

153 Unfortunately, little is simple or straightforward in this legislation or in the Regulations. Primarily, the "termination day" means the day that is six months after the day on which weekly payments commenced - s 93E(1). For this applicant, the calculation of the "termination day" in accordance with this definition means that the notice of referral, Form 22, should have been filed a long time before it was, since his injury by accident in the course of employment and the commencement of weekly payments had occurred long before the introduction of the amendments effected by the Workers' Compensation and Rehabilitation Amendment Act 1999. However, because this worker and many others were caught in an invidious situation because of the effects of those amendments, the legislation was amended yet again by the Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999 modifying the time limits for workers whose weekly payments had commenced prior to 5 October 1999 to provide that, subject to further provisions, the "termination date" applying to such workers was 5 January 2000. This was effected by s 93E(6) of the Act as amended which, materially, provides:

(a) medical evidence complying with section 93D(6) was produced to the Director not less than 21 days before the termination day; and

(b) although a question of whether the degree of disability is not less than 16% was referred to the Director under section 93D(5) not less than 21 days before the termination day, at the end of the seventh day before the termination day the Director has not given the worker notice in writing that an agreement or determination of the question has been recorded,

an election can be made under subsection (3)(b) within 14 days after the Director gives the worker notice in writing that an agreement or determination of the question has been recorded."

This constitutes a statutory extension of the time within which a worker may make a s 93E(3)(b) election conditioned upon the satisfaction of several objective tests. These tests, each of which needs to be satisfied, require that:

(a) medical evidence complying with s 93D(6), was produced not less than 21 days before the termination day (in practical terms the filing of Form 22 in due time before the termination day);

(b) the absence of any notification by the Director given to the worker in writing that agreement or determination of the question of disability had been recorded at the end of the seventh day before the termination day;

(c) eventual notification of agreement or determination of the disputed question of disability being given by the Director in writing to the worker;

(d) election being made by the worker under subs 93E(3)(b) and 93E(6) within 14 days of the receipt of the written notice of the Director of agreement or determination of the question of disputed level of disability.

154 It will be noted that these rather cumbersome provisions only provide for a limited extension or change in meaning of "termination day", as defined by subs 93E(1). The date is extended, in certain circumstances, so that an election to retain the right to seek damages at common law may be made conditional upon production of medical evidence complying with s 93D(6) to the Director not less than 21 days before the (extended) "termination day" (the filing of Form 22 and its accompanying materials).

155 Because of the operations of the Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999 the "termination day" in this case is to be regarded as the day that is three months after the assent date, that is three months after 5 October 1999 making the extended termination date 5 January 2000. So, to be eligible for the conditional right to elect after the termination day granted by s 93E(6) of the Act, this worker needed to have produced to the Director his medical evidence not less than 21 days before the extended termination date. In other words, the Form 22 with the appropriate medical evidence needed to be lodged by 14 December 1999 to be within the time set by this framework. In fact the Form 22 and the accompanying medical evidence lodged by this worker was filed on 16 December 1999, two days after the latest date prescribed for compliance of the first of the conditions which needed to be satisfied before an extension of that period for lodging the election could be obtained.

156 Notwithstanding that the Form 22 had been lodged two days late, the reference to the Director of the question of the degree of disability alleged by the applicant, proceeded to determination in the manner provided by s 93D. The Director notified the employer of the referral of the question to him as required by s 93D(7); within the ensuing 21 day period the employer notified the Director that it considered that the degree of disability was less than the relevant level, thus giving rise to a dispute under s 93D(8). The Director then considered the dispute in consultation with the parties under s 93D(9) and, eventually, on 22 March 2001, a review officer determined that the applicant's relevant level of disability was not less than 16 per cent. Consequent upon that determination, the worker lodged his election for registration with the Director under the extended time limit prescribed by s 93E(6). Up to this point none of the parties, the applicant worker or the respondent employer, or for that matter the Director who referred the determination of the dispute about the alleged level of disability, took any point about the late filing of the Form 22. This is so notwithstanding that the referral of the question of the minimum extent of the worker's alleged disability, the joinder of issue on the dispute about the level of that disability, and its eventual determination by the Review Officer were all steps taken solely for the purposes of leading to a stage when the worker could make an election under s 93D(3) and, depending upon the election, so institute a claim for damages at common law. Furthermore, if reg 19M of the Regulations is valid (an issue which it is no longer necessary to determine in these proceedings), an election under s 93E(3) to retain the right to seek damages at common law could not have been made or registered unless and until there had been agreement upon, or a determination of any dispute regarding, the worker's alleged minimum degree of disability.

157 The validity of reg 19M was initially challenged by the applicant on the basis that it was ultra vires and beyond the scope of the power to make regulations conferred by the Act - s 93G and s 176 in imposing a condition or fetter upon an election made by a worker under s 93E by prescribing that such an election may not be made before the degree of disability is agreed or determined in accordance with the regime established by s 93E. However, these submissions were not developed by the applicant and no attention was given to previous decisions of this Court, both of single Judges and of the Full Court, which have held that reg 19M is valid, or have treated it as valid: Re Monger; Ex parte Woodford [1999] WASC 273 per McKechnie J; Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19 per Parker J and Re Ross Monger; Ex parte Swan Portland Cement Ltd [2001] WASCA 321 per Malcolm CJ, Kennedy and Steytler JJ. It was in order to consider this challenge to the validity of reg 19M that the court reconvened as a bench of five Judges. However, at the March 2004 hearing for this purpose, counsel for the applicant informed the court that the challenge to the validity of reg 19M would not be pursued. In the absence of any challenge to these authorities, and especially to the endorsement of the validity of the regulation by the Full Court in the last of these three decisions, I do not consider that it is necessary or appropriate to review those decisions or to examine the validity of reg 19M.

158 After the applicant worker had made his election to retain the right to seek common law damages pursuant to subs 93E(3) and (6) and lodged that election for registration by the Director on 3 April 2001, the Director, of his own motion, and without any apparent intervention or submissions from the respondent employer, declined to register the election on the grounds that no extension of the date for election was possible after the termination day had passed as a result of the Form 22 application being lodged on 16 December 1999, rather than by the last day, 14 December 1999.

159 In subsequent correspondence with the solicitors for the applicant, the Director provided further explanation of his reasons for refusing to register the election by writing:

"If I accept the most favourable interpretation for your client as to the commencement of weekly payments (i.e. 5 October 1999), by virtue of the transitional provisions, the termination day for your client is 5 January 2000. Therefore the Form 22 and supporting medical evidence lodged on 16 December 1999 was not lodged not less than 21 days before the termination day as required by s 93E(6).

Accordingly, as the election has been lodged after the termination day and the provisions of s 93E(6) have not been met, an election cannot be made. I am therefore unable to register the election."

Plainly, the "termination day" had long passed before the election of the worker was lodged for registration on 3 April 2001. The question, therefore, is whether the applicant was entitled to have his election registered after the "termination day", because of the conditional right of workers to make such elections after the "termination day" if they satisfied the conditions prescribed by that subsection. Equally, it is plain that, the first of these conditions was not satisfied because the Form 22 was filed two days late.

160 The applicant seeks a writ of certiorari to quash the decision of the Registrar to refuse to register his election, on the basis that this refusal is based upon an error of law, and/or alternatively he seeks, a writ of mandamus to compel the Registrar to register his election, or to consider his application for registration further in the light of special circumstances. The special circumstances relied upon by the applicant are as put in his counsel's written submissions, that the initial decision of the Director to accept the Form 22 on or about 16 December 1999 has gone unchallenged by the applicant's employer, either by way of writ of certiorari or otherwise and, accordingly, that decision stands and all the consequences that flow from that decision stand. I take this as a contention that the question of the extent of the worker's alleged disability having been referred to the Director, having then been put in issue by the employer, and then having been resolved by a decision of the Review officer after hearing the parties, means, at least in the submission of the applicant, that neither the Director nor the employer may now be permitted to rely upon the late filing of the Form 22 as a ground for refusing to register the applicant's election. The Director having taken this stand, the employer now adopts the same position and has joined the lists in these proceedings. It submits that there has been no error of law by the Director in refusing to register the election and has submitted that the present order nisi for certiorari and mandamus should be discharged.

161 It is to be noticed that the prohibition in s 93E(5) of the Act is against making an election under subs (3)(b) after the termination day rather than a prohibition against registering an election purported to have been made by a worker after that day. The requirement for the registration of such an election appears to derive from reg 19M of the Regulations to the Act, but the registration of such an election is one of the conditions which are essential for a court to be able to award damages at common law in any ensuing action for damages - s 93E(3)(b). The real question therefore, appears to be whether or not this applicant was entitled to make an election to retain the right to seek damages at common law when he did, rather than whether the Director was required to register his purported election. In other words, the refusal of the Director to register the election can only be justified if the applicant was not entitled to make that election when he attempted to do so, having regard to all the circumstances.

162 In view of the acknowledged late filing of the Form 22, even if only by two days, the plain interpretation of the statutory provisions should lead to the conclusion that from that point on, the applicant was always out of time. It is another thing, however, to conclude that no matter what happened in relation to the dispute over his level of disability, that obstacle could never be overcome. In view of the submissions made by the applicant, the question has now been raised concerning whether the conduct of the parties, including the Director, in determining the dispute over the level of disability by subsequent proceedings under the Act and then obtaining a decision from a Review officer certifying that the disability was not less than the minimum level, has meant that the late lodgement of the Form 22 cannot now be relied upon, either by the Director or by the employer, as a reason to preclude the making and recording of the election attempted by the applicant. This raises for consideration, the consequences of non-compliance with the time limit prescribed by s 93D(3) or (6) in circumstances such as occurred here.

163 In this regard it is necessary to notice as a first step in the analysis of the significance of the statutory provisions and the time limits which they impose, that Pt IV Div 2 of the Act, in imposing the constraints which it does upon the award of common law damages, applies to the rights and liabilities of persons, employers and employees, including persons coming within the extended definitions of both categories, which arise at common law, in tort, for breach of statutory duty or for breach of contract. These are rights which cannot be abrogated by statutory intervention in the absence of clear words or a necessary implication to that effect - Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 77 ALJR 40 at 43 pars [11], [43], [111] and [132] and per Gummow, Hayne and Heydon JJ in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 78 ALJR 161 at 165 [21] and [80]. These provisions are not concerned with the entitlements of persons to compensation or other benefits available under any of the provisions of the Act, nor with the resolution of disputes about entitlements to benefits arising under the Act.

164 The constraints which are imposed on the award of common law damages are effected by prohibiting any court from awarding damages to a person contrary to Div 2 of the Act (s 93C, s 93E(3) and s 93F(1)), all of which prohibit a court from awarding damages otherwise than in conformity with those provisions. None of them abolishes or excludes the liability in damages which arises at law from tortious conduct, breach of statutory duty, breach of contract or other breach of duty which causes personal injury, loss or damage - Dossett v TKJ Nominees Pty Ltd (supra) per Kirby J at 171 [59], [61] and [85]. Rather, in each case, courts of this State are prevented from awarding the common law remedy of damages except when, and to the extent to which, such a remedy conforms to the limitations imposed by this legislation. The restraints are therefore procedural in nature rather than substantive as they prohibit or qualify the remedy which a court may grant in this State, rather than barring or eliminating the right or liability to damages - see also McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 per Mason CJ at 18 - 21.

165 One particular effect of these restraints being procedural, rather than substantive, is that where such a procedural restraint is imposed to prevent proceedings being commenced in any court or tribunal without leave being granted, the institution of proceedings without the grant of leave will not be invalid if leave is obtained subsequently on a nunc pro tunc basis. As a result there is a series of cases illustrating how leave to proceed may be granted subsequently where the proceedings had been initiated without the prior grant of leave contemplated by the restrictive provision - Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 is one example. In Mealing v P Chand T/as Fastfix [2003] NSWCA 205; (2003) 57 NSWLR 305 the Court of Appeal in the Supreme Court of New South Wales (Meagher and Handley JJA and Young CJ in Eq) considered the power of the District Court of New South Wales to grant leave, nunc pro tunc, for an employee to bring an action for damages against his employer to enforce a common law cause of action where leave to commence such proceedings was necessary under s 151D(2) of the Workers Compensation Act (1987) NSW. That section provided that a person to whom compensation is payable under that Act is not entitled to commence court proceedings for damages against the employer more than three years after the date on which the injury was received except with the leave of the court in which the proceedings are to be taken. In allowing the appeal from a decision of the District Court that it did not have power to grant leave nunc pro tunc after the commencement of proceedings outside the three year limitation period, Handley JA, with whom Meagher JA and Young CJ in Equity agreed, said at 307:

"However, the general principle established in England in the first half of the nineteenth century and followed ever since is that limitation legislation which merely bars the action or the remedy, but does not expressly extinguish the cause of action or the right, is procedural in its operation.

The earliest statutory provisions, at least to my knowledge, that barred actions unless they were brought with the leave of the court, were in company and bankruptcy legislation which imposed such a bar following the making of a winding-up order or a sequestration order. For nearly a hundred and fifty years, with very few and presently disfavoured exceptions, courts have construed the bar in such legislation as procedural and the power to grant leave to bring proceedings as also procedural. This analysis supports the established view that under such legislation leave may be granted having retrospective effect, or as it is said in Latin, nunc pro tunc."

In this regard, the point made by Dawson J in Emanuele (supra) at 125 is pertinent in that s 93C, s 93E(3) and s 93F(1) of the Workers Compensation and Rehabilitation Act (1981) do not confer jurisdiction upon the District Court of Western Australia, or on any other court, to award damages at common law in an employee's action for negligence, breach of contract or breach of statutory duty. That jurisdiction is derived elsewhere as part of the general civil jurisdiction of such courts.

166 To conclude that the constraints upon the recovery of common law damages imposed by this legislation are procedural is not alone sufficient to determine the effect of the provisions. There can be certain procedural restraints, which if not satisfied will be fatal to the litigant's desired pursuit of an avenue of redress. These occur where the right of action asserted is itself a creature of statute and not of the general law. In such cases full compliance with statutory procedural conditions for the maintenance of the statutory cause of action will generally be essential although there are sometimes exceptions - Wright v John Bagnall and Sons Ltd [1900] 2 QB 240, where an employer admitting statutory liability to pay compensation was estopped from raising the defence that the claim was not brought within the prescribed time. That is not the case (in the absence of clear legislative intention to the contrary) where the cause of action has its origin in the general common law, as here, where the applicant's right of action is based in negligence or upon a breach of an implied term in his contract of employment. The decision in R v McNeil & Anor [1922] HCA 33; (1922) 31 CLR 76 is an example of the former category of case, and the inapplicability of the general law to other cases in that category is also shown by the Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 72 ALJR 687 per Gaudron J and Kirby J. However procedural constraints on the enforcement of common law rights will not be treated as having such a fatal effect in the absence of a clear indication of the legislative purpose - Dossett v TKJ Nominees Pty Ltd (supra) at [80].

167 There may be little scope for practical difference in outcomes from this appreciation of the distinction between the barring of the remedy rather than the right in the Australian context. All courts in this State, or on appeal from a court of this State, are bound to apply and enforce the constraints and limitations imposed by this Act on any claim for damages by a worker against an employer, again using the extended definitions of both terms. These involve the private rights of the parties concerned arising from their mutual dealings and accepted obligations. In the Australian context an action by a worker against an employer for damages, even if brought in the courts of another state or territory, or in a federal jurisdiction, if available, would still result in any ensuing award of damages being constrained by the conditions and limitations of Pt IV Div 2 of this Act - see John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 and Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491.

168 The current position in Australia that limitation laws are characterised as being substantive and not procedural has been achieved by statute: Choice of Law (Limitation Periods) Act (1994) reversing the position which prevailed at common law prior to the decision in John Pfeiffer Pty Ltd v Rogerson (supra), but that statute does not apply in the present case because of the definition of a "limitation law" prescribed by s 4. In John Pfeiffer Pty Ltd (supra) a more limited distinction between substance and procedure was still recognised in that "rules which are directed to governing or regulating the mode or conduct of court proceedings" are procedural and all other provisions or rules are to be classified as substantive - per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 543 although it is important to recognise that the issue being addressed was the identification of the law to be applied in a choice of law situation and not whether compliance with a statutory condition could be waived or whether reliance upon that statutory condition could become the subject of an effective estoppel.

169 Nevertheless, the possibility cannot be excluded that if a worker is injured as a result of the negligence of his employer in this State but later, because the employer has a foreign domicile, carries on business in a foreign country or holds assets in a foreign country, the worker may sue the employer in that foreign jurisdiction and, in that case, there may be a real question as to whether or not a law of Western Australia which bars a remedy, will have the effect of limiting damages recoverable in that other jurisdiction - see Regie National des Usines Renault v Zhang (supra) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [76]. Therefore, despite the abandonment in Australia of the double actionability test for foreign torts which constitute a cause of action in any Australian court, Regie National des Usines Renault v Zhang (supra) and Dow Jones Company Inc v Gutnick (2002) 210 CLR 575, it remains possible that if an action for damages were brought in some foreign court, seeking recovery by an employee against his employer for losses alleged to be caused by the employer's tort in Western Australia, the substantive/procedural distinction might be applied by the foreign court so as to deny reliance by the employer on any "procedural" defence arising under Pt IV Div 2 of the Act. The possibility of a foreign court applying its own procedural law in place of the law of Western Australia may be less now than in former times because of the modern trend in common law jurisdictions to follow the North American and Continental preference for treating the lex loci delicti as the only determinant in a foreign tort based claim but there are still important remnants of the local foreign procedural law being applied to the exclusion of the lex loci delicti. Examples of this potentiality can be seen from the principles reviewed in Dicey and Morris "The Conflict of Laws" 13th ed; Sweet and Maxwell (2000) and the First Supplement (2001) at vol 2 paras 35-049 to 35-055, but this potential may be denied by the applicable local law of the particular foreign forum. It is also, of course, always subject to the possibility that the foreign court may, on an application of the parties, stay proceedings in its jurisdiction on the ground that there is a more suitable forum accessible to the parties elsewhere, such as in the locus delicti.

170 Once it becomes apparent that, at least in some limited situations, the susceptibility of an employer to a judicial or other remedy, may be more extensive than available from the courts of this State, or of this country, because the liability is not extinguished or the right to damages removed by legislation of this State, the question of the conduct of the contending parties will become material. This is a consequence of the substantive/procedural distinction in the nature of the statutory provision. So, in this case, where it is being alleged by the applicant that the conduct of the Director and the respondent employer in participating in the determination of the dispute over the extent of the alleged disability excused the effect of late filing of the Form 22, this distinction becomes material.

171 This gives rise to the questions of whether, in the present circumstances, as the applicant contends, there has been waiver by the respondent of any entitlement to rely upon the late filing of the referral and also whether the Director, having made the referral, and the referred dispute having been determined by the Review officer, can now refuse to register the ensuing election.

172 That Div 2 Pt IV of the Act, including s 93C of the Act, does not abolish or extinguish any right to damages at common law but, instead, precludes courts of this State from awarding the remedy of damages is significant in several ways. Firstly, it leaves open the possibility that damages or similar compensation may be recovered by an injured worker other than by a judgment of a court bound to apply the legislation such as, as previously instanced, by a foreign court which does not apply procedural rules of the lex loci delicti, or, even possibly, as a result of an award made by an arbitrator under a reference to arbitration which might exist in the contract of employment between the worker and the employer or result from some subsequent voluntary reference to arbitration (the term "court" in s 93C of the Act is not defined there or elsewhere in any manner to include a reference to arbitration or to an arbitrator conducting such a reference - see Interpretation Act (1984), s 5 and Commercial Arbitration Act (1985), s 4).

173 A further possibility is that the employer may agree to pay damages or compensation to an injured worker in a fixed or ascertainable amount to be determined otherwise than by a judgment or assessment of any court. The capacity of an employer to agree to a process which would lead to the payment of damages or compensation to an injured employee, otherwise than by a determination or judgment of any court, emphasises the private nature of the rights involved between the parties and, consequently, the capacity of those rights to be varied or modified by mutual agreement or other available non-curial process. This process need not involve any contracting out of the provisions of the Act contrary to s 181 and, where damages were paid, compliance with the requirements of s 92(f) could readily be effected.

174 A further consequence is that the statutory provisions precluding the remedy of damages being granted by a court in this State will need to be pleaded as a special defence to any action for the recovery of damages which might be instituted by an injured worker claiming damages for negligence or other alleged breach of duty (RSC O 20 r 9(1)). This is because the statutory provisions do not prohibit the institution of any such claim for damages by an injured worker but, rather, preclude a court from granting relief in the form of damages.

Waiver or preclusion of reliance upon the statutory time limit

175 It is therefore necessary to consider, in some detail, the submission by the applicant that the initial decision of the Director to accept the Form 22 on or about 16 December 1999 stands and that all consequences that flow from that decision also stand. Importantly, the omission of the applicant, is only in respect of one part of the procedural regime prescribed by Pt iv Div 2, namely the late filing of the Form 22. All other steps and procedures required by the Act were correctly performed. Hence, the focus of this case is not upon a general or total non-compliance with the procedures required by the Act but, rather, it is the significance, at a late stage of the procedure, upon non-compliance with a time limit at an anterior stage which had passed without objection while other sequential procedures were completed.

176 Despite continuing controversies over whether or not the historical developments of a variety of estoppels can be accommodated within one single unifying principle, and remaining questions about the extent of the remedy sufficient to address any equity arising from an estoppel, the decision of the High Court in the Commonwealth v Verwayen (1990) 170 CLR 394 continues to be the leading authority in Australia concerning the application of the doctrines of estoppel or waiver in relation to statutory limitation defences or time bars. In that case, the majority (Deane, Dawson, Toohey and Gaudron JJ, with Mason CJ, Brennan and McHugh JJ dissenting) decided that the defendant in an action for damages arising from injuries sustained by a crewman on a naval vessel at sea, was not able to defend the claim by pleading a limitations defence arising under the Limitations of Actions Act 1958 (Vic) in circumstances where the conduct of the Commonwealth in the defence of the action previously had led the plaintiff to rely on a representation that the Commonwealth would not contest liability in such an action or plead a limitations defence. Six of the seven Justices, including each of the three dissenting Justices, addressed the question of whether or not circumstances could arise which would prevent a defendant raising a statutory time bar in such proceedings. Their Honours acknowledged that such a prevention could occur in relation to certain statutory defences. In the particular circumstances arising in Verwayen (supra) the reasoning of the dissenting Justices appears to have turned largely upon their appreciation of the significance, in the particular circumstances of that case, of the proposed departure by the Commonwealth from its previously represented intentions, and upon the extent to which equitable or other relief was sufficient to address any equity arising and not upon whether or not such a defence could be precluded. Having regard to the importance of the observations of their Honours it is necessary to set out passages from their reasons of decision at some length.

177 Although in dissent, Mason CJ addressed the issue of whether circumstances could arise to prevent reliance upon a statutory time limit in a manner which, with respect, is consistent with the approaches taken by the majority and by the other members of the Court. His Honour said (at 405 - 406):

"However, the Parliament has seen fit to implement this policy, not by imposing a jurisdictional restriction, but by conferring on defendants a right to plead as a defence the expiry of the relevant time period. In these circumstances and having regard to the nature of the statutory defence, I conclude that the purpose of the statute is to confer a benefit upon persons as individuals rather than to meet some public need which must be satisfied to the exclusion of the right of access of individuals to the courts. On that basis, it is possible to 'contract out' of the statutory provisions, and it is equally possible to deprive them of effect by other means such as waiver. Put differently, the provisions are procedural rather than substantive in nature, which suggests that they are capable of waiver: Admiralty Commissioners v Valverda [1938] AC 173 at 185.

But, granted that some statutory rights can be waived, the mere existence of cases in which statutory rights have been held to be susceptible to waiver does not signify that those cases are all exemplifications of one concept or doctrine. As often as not, the term 'waiver' is used to describe the result of the application of various principles rather than to designate a particular legal concept or doctrine. The consequence is that the expression 'waiver' has been the subject of robust criticism, notably by Dr Ewart in his work Waiver Distributed (1917); see also Bysouth v Shire of Blackburne and Mitcham [No 2] [1928] VicLawRp 81; [1928] VLR 562 at 579; Larratt v Bankers & Traders' Insurance Co (1941) 41 SR (NSW) 215 at 226; Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 per Lord Diplock at 882 - 883. This is because 'waiver' is an imprecise term capable of describing different legal concepts, notably election and estoppel."

"Another category of waiver is one in which a person is prevented from asserting, in response to a claim against him, a particular defence or objection which would otherwise have been available. Here waiver is said to arise when the person agrees not to raise the particular defence or so conducts himself as to be estopped from raising it: see Kammins [1971] AC, at 883."

Accordingly, on the approach taken by Mason CJ, circumstances precluding a defendant from relying on a statutory defence may arise, if the purpose of the statute is to confer upon the defendant a benefit as an individual rather than for the public generally, whether or not the circumstances give rise to a "waiver" or an estoppel of a particular kind.

178 Brennan J, who was also in dissent, engaged in a detailed analysis of the doctrines of waiver, election and estoppel at 422 - 428 in Verwayen (supra). In the present case, his Honour's observations at 425 are of particular significance. There Brennan J said:

"As it is a characteristic of a right susceptible of waiver that it is introduced solely for the benefit of one party, a condition precedent to the jurisdiction of a court to grant relief cannot be waived: Parkgate Iron Co v Coates (1870) LR 5 CP 634. It follows that, if the jurisdiction of a court to entertain proceedings is conditioned on the commencement of the proceedings within a specified time, a defendant cannot waive the time requirement and thereby confer jurisdiction on the court. Conversely, where a case is fought on the issue whether a time limitation in a particular statute is or is not a condition precedent to jurisdiction, an argument that another statute overrides the time limitation can be raised on appeal though conceded in the court below: Adams v Chas S Watson Pty Ltd [1938] HCA 37; (1938) 60 CLR 545 at 547, 548. However, a defence under s 5(6) of the Limitation Act [Vic] does not create a condition precedent to jurisdiction. It is merely a right conferred on a defendant to defeat a claim brought outside the time limited by the Limitation Act. In Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471 at 488 - 489 Windeyer J said:

'It seems that, under the common law system of pleading, when a limitation is annexed by a particular statute to a right it creates, the plaintiff should allege in his declaration that the action was brought within time. On the other hand it is for the defendant to plead the Statute of Limitations as a defence to an action on a common law cause of action, as if he does not it is assumed that he intends to waive it: see Chappel v Durston (1830) 1 C & J 1 at p 9; 14 ER 1311 at 1314. However, when issue is joined on a plea of the Statute, the burden of proving that the action is within time is on the plaintiff: see cases referred to by Dixon J, as he then was, in Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91 at 97. And, even when a time limit is imposed by the Statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived, either expressly or in some cases by estoppel: Wright v John Bagnall & Sons Ltd [1900] 2 QB 240; Lubovsky v Snelling [1944] KB 44.' "

Again, there appears, as a relevant factor, the need for identification of the character of the statutory bar, namely, as to whether it is jurisdictional or procedural. In addition there is a strong affirmation of those cases which have held that a time bar which does not remove a right of action is of a procedural and not a jurisdictional character.

179 Deane J, in his attempted synthesis of the various streams of authority dealing with the doctrine of estoppel in the quest for a general doctrine, does not appear to have discussed at length those authorities dealing with preclusion of reliance upon a statutory time bar although, with respect, his Honour's reasons do not appear to suggest any rejection of, or inconsistency with, the principles contained in those authorities.

180 Dawson J recognised that particular exemplifications of the doctrine of waiver and of the doctrine of estoppel may prevent reliance by a party upon a statutory defence and said, at 452:

"In Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 at 883, Lord Diplock also distinguished waiver amounting to an election from waiver amounting to an estoppel. The former, he said, occurs where 'a person is entitled to alternative rights inconsistent with one another' and 'acts in a manner which is consistent only with his having chosen to rely on one of them'. The latter 'debars a person from raising a particular defence to a claim against him' and 'arises when he either agrees with the claimant not to raise that particular defence or so conducts himself as to be estopped from raising it'. In referring to waiver amounting to estoppel, Lord Diplock was speaking not only of estoppel by conduct which is based upon a representation or an assumption with respect to an existing state of affairs. He was also speaking of promissory or equitable estoppel which is based upon an assumption with regard to future conduct. The assumption may arise from the representation or from conduct - that is to say, it may be the result of an express or implied promise. See also The 'Kanchenjunga' [1990] 1 Lloyd's Rep 391."

It seems to follow from the characterisation adopted by Dawson J that his Honour would treat a failure by a party to raise a statutory defence implying, or followed by conduct which implies, that the defence will not be raised as giving rise to an effective estoppel precluding subsequent reliance upon such a defence.

181 At 470 - 471 Toohey J, also one of the majority in Verwayen (supra), said:

"In what circumstances does waiver operate? In particular, when is a defendant precluded from relying upon a defence such as a plea of limitations? To attempt an answer to the general question first. A defendant may be precluded from asserting a right or from raising a defence, as a matter of contract. In Tropical Traders Ltd v Goonan [1964] HCA 20; (1964) 111 CLR 41, where this Court was considering the consequences of repeated acquiescence by one party to a contract in non-observances by the other party of stipulations as to time, Kitto J commented [at p 52], that 'it may not matter whether the result is described as a promissory estoppel or a waiver or a variation of the contract by mutual, though tacit, consent'. Yet, variation of contract does stand in a category of its own since, as the law presently stands, consideration is necessary to support the altered bargain. In many cases where waiver is sought to be argued, consideration is not present; the situation may be an entirely non-contractual one, as in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, where the question was whether a party to litigation, with a knowledge of the right to take objection on the ground of bias on the part of the trial Judge, lost that right through failure to take objection at the appropriate time."

Again, there is recognition of the body of doctrine which establishes that circumstances may arise to preclude reliance upon a statutory defence. In particular, there is also acceptance that such situations are not confined to the realms of contract but may arise by the failure to raise the available defence at a particular time.

182 These principles also appear to have been accepted and the ability of circumstances to preclude reliance upon certain statutory defences recognised, by Gaudron J, for her Honour said at 486 in Verwayen (supra):

"The general principle is that 'an individual cannot waive a matter in which the public have an interest': Graham v Ingleby (1848) 1 Ex, at 657; 154 ER at 279, per Alderson B referring to the Queen Reg v Bloxham [1844] EngR 973; (1844) 6 QB 528; 115 ER 197. See also Ross v Australian Postal Commission (1982) 69 FLR 376 at 382; Phillips v Martin (1890) 11 NSWLR at 158. Conversely, a person may waive a right that is for his or her own benefit: Great Eastern Railway Co v Goldsmid (1884) 9 App Cas 927 at 936 - 937; Toronto Corporation v Russell [1908] AC 493 at 500. Where a right is conferred by statute a question may arise whether the statute confers a personal or a public right. See, for example, Ross [1982] 69 FLR at 382 - 383; Parkgate Iron Co (1870) LR 5 CP at 638 - 639. A statutory right to plead that an action is statute barred, such as that conferred by s 5 of the Limitation of Actions Act [Vic], which bars the remedy rather than the right to invoke a court's jurisdiction, is a personal right. See Kammins [1971] AC at 881, per Lord Diplock. Cf Adams v Chas S Watson Pty Ltd [1938] HCA 37; (1938) 60 CLR 545 where the issue under consideration was whether a time limitation ousted jurisdiction."

An application of the tests accepted by Gaudron J in this passage would lead to a characterisation of the statutory defences available under s 93C and elsewhere in Pt IV Div 2 of this Act as being procedural, or non-jurisdictional, in character.

183 The same doctrine and an acceptance of the same principles distinguishing between substantive or jurisdictional statutory defences on the one hand and procedural defences on the other was adopted by McHugh J, although his Honour was in dissent over the final result in Verwayen. At 497 McHugh J said:

"Some of the cases which debar 'a person from raising a particular defence to a claim against him', however, stand outside the categories of election, contract and estoppel. They are sui generis. They are cases where a statute has conferred a right on A, subject to the fulfilment of a condition for the benefit of B, and B has waived the condition by taking the next step in the course of procedure without insisting on A fulfilling the condition. In my opinion, the true basis of the decisions in these cases is that, where the existence of a statutory right depends upon the fulfilment of a condition precedent, a person entitled to insist on the fulfilment of that condition may dispense with its compliance unless it is enacted for the benefit of the public, and that person will be held to have waived compliance with the condition if he or she knowingly takes or acquiesces in the taking of a subsequent step in the course of procedure laid down by the statute after the time for the other person to fulfil the condition has passed. These cases are, also, to a certain extent, anomalous. They should be strictly confined so as not to conflict with the more established doctrines of election, contract and estoppel."

The status of the overall result of the different approaches taken by the Justices in Verwayen (supra) upon the continuing significance of that decision has been noted in recent leading legal writings in this country. It is addressed in Meagher Gummow and Lehane's "Equity Doctrines and Remedies", 4th ed (2002) Butterworths at 535 - 536, but the continuing controversy appears to have more to do with the quest for a single theory accommodating the historical developments of different estoppels and, more particularly, the extent of any remedy in equity sufficient to give effect to the ensuing preclusion; the emphasis in this regard in more recent times appearing to be on the restriction of the remedy to the minimum needed to address the equity - see Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101. There does not appear to be any reason to discount, or to treat than other as authoritative, the expressions of principle found in the judgments in Verwayen (supra) concerning the tests for, and the circumstances in which, preclusion of reliance upon a statutory defence may occur.

184 Already in these reasons attention has been devoted to identifying the character of the provisions in Pt IV Div 2, and particularly s 93C of the Workers' Compensation and Rehabilitation Act 1981 for the purposes of ascertaining whether they are substantive, or "jurisdictional" as opposed to provisions which bar a remedy and, hence, are effective only when specifically relied upon by a defendant. On all the tests referred to in the authorities, the character of the statutory defence in this legislation must be classified as procedural; as a bar to the remedy rather than of the right; or, "non-jurisdictional"; leading to the conclusion that it may be waived. In this regard it is also to be recognised that, as I have already concluded from earlier analysis, the right to raise such a statutory defence is conferred upon employers as a private right rather than as a public right. It is incidental to the correlative private liability of individual employers for torts, breaches of statutory duty or breaches of contract giving rise to a private right of action by an individual employee for damages. Other members of the public are not directly affected by the outcome of the dispute between an employee and his employer over a claim by the former for damages for personal injuries alleged to arise from the employer's tort.

185 Nevertheless, in its submissions the respondent employer cited the decisions of this Court in Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 and Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 which held that, on a different question, namely the power to refer to the Director a dispute as to the degree of disability of a claimant worker under s 93D of this legislation, where no medical evidence complying with the requirements of s 93D(6) of the Act had been lodged by the applicant worker, this meant that the Director had no jurisdiction to refer for resolution the dispute over the question of the degree of disability alleged by the worker. In the present case no such question arises because it is not disputed that the medical evidence relied on by this applicant filed in conjunction with the Form 22, and later referred to the Director, was sufficient to satisfy the statutory requirements. No contention to the contrary ever appears to have been raised by the respondent and it was certainly not so suggested at the hearing of this application. To the same effect was the more recent decision of the Full Court in four cases heard together in Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129 (Smith v Fruin, Cooks Construction Pty Ltd and City of South Perth).

186 In Re Monger; Ex parte United Construction Pty Ltd (supra) a special court of five Judges was convened in order to hear an anticipated challenge to the earlier decision in Re Monger; Ex parte Dutch (supra) but, in the event, no such challenge materialised. This trilogy of decisions, therefore, stands as authority for the proposition that the adequacy of the medical evidence accompanying a Form 22 referral conditions the jurisdiction of the Director to consider, under s 93D, the dispute about the degree of disability of a worker and, for that matter, also the ability of the Director to refer such a dispute for determination (s 93D(10)). It is enough to say that this is not a question which has arisen in this case which, instead, raises the separate and distinct issue of whether or not there may be a waiver or estoppel preventing reliance upon a late filing of the Form 22. As the authorities already examined all acknowledge that a statutory provision imposing such a time limit, in circumstances where the effect of the statutory provision is to bar a remedy rather than a right, may be waived or may result in a defendant being precluded from raising it later in proceedings, I consider that this direct line of authority should be accepted and applied as there is no direct impediment to that course arising from the decision in Re Monger; Ex parte Dutch (supra) or in the subsequent cases which have applied that decision.

Failure to raise time defence in review proceedings

187 The question which, therefore, remains is whether or not the failure of the first respondent, as employer, to raise any point or to object to the late filing of the Form 22 before now results in a preclusion, whether by waiver or by estoppel or as a combination of both doctrines, to reliance upon such a defence now. An associated question is whether or not the Director can rely, or should have relied, upon the late filing of the Form 22 at the point where the applicant had made an election under s 93E(3) and (6) and lodged the election for registration. Both of these issues require attention to be given to the opportunities for the first respondent to have taken such a point, and the significance of such a point if it had been taken, earlier in the proceedings.

188 The process for the determination of whether or not a worker's degree of disability is not less than the relevant level begins with the absence of agreement on that issue between the employer and employee because, it is in the absence of such agreement that the worker may refer the question to the Director (s 93D(5)). The referral which may then take place must be accompanied by medical evidence indicating, in the medical practitioner's opinion, that the degree of disability is not less than the relevant level. As Re Monger; Ex parte Dutch (supra) has decided, this is a substantive requirement which, if not fulfilled, will vitiate the attempted referral. Upon receipt of a referral the Director is to notify the employer (s 93D(7)). The form of notification is prescribed by the Regulations (reg 19J(2)) and is to be accompanied by a copy of the medical evidence produced to the Director under s 93D(6). The prescribed notification form, Form 23, gives notice that the question whether the worker's degree of disability is, or is not, less than the relevant level has been referred to the Director, Conciliation and Review Directorate, for consideration and is accompanied by a copy of the medical evidence provided by the worker. It informs the employer of the need to consider the worker's degree of disability and to object within 21 days if the employer considers that it is less than the relevant level. The standard form appearing in the Regulations does not contain any provision for stating when the referral by the worker to the Director was made and there is no evidence in the present proceedings to suggest that the employer was notified of the date of referral at this point. Nor is the evidence clear about precisely what happened in this case after the referral to the Director, except for showing that the employer disputed the alleged disability under s 93D(8) within time.

189 The procedure to be followed in such circumstances is for the dispute to be considered by the Director and, in the absence of agreement, for it to be referred by the Director for resolution under the provisions of Pt IIIA. However, the evidence does show that a review was conducted by a Review Officer on 6 March 2001 and an order made on that date determining that the relevant level of disability was not less than 16 per cent. That order must, therefore, have been made under s 84ZF. The order was made after hearing the parties and constituted a binding determination in respect of which a limited right of appeal under s 84ZN(2) existed. Subject to that limited right of appeal, the decision or order of the Review Officer was not open to question or review in any court and the proceedings before the review officer could not be restrained by injunction, prohibition or other process or proceedings in any court or by removal by certiorari or otherwise in any court - s 84ZN(1). It has been held that, in certain circumstances, such a determination on a review, if in truth "final and binding", will give rise to an issue estoppel between the parties - see Waddington v Silver Chain Nursing Association [1998] WASCA 331; (1998) 20 WAR 269 and United Construction Pty Ltd v Maketic [2003] WASCA 138. One of the consequences of such a decision being final and binding and giving rise to an issue estoppel is that it cannot later be challenged on the basis of any ground or cause which could have been raised before the decision maker at the time the particular issue was being decided - Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. The determination of such a dispute by the review officer may include the determination of a question of law, s 84ZE(b); s 84ZN(2) and r 12(2)(d) of the Workers' Compensation (Conciliation and Review) Rules 1994 and written reasons for decision of the review officer may be demanded - s 84ZI of the Act.

190 In my opinion it follows from these provisions, and the nature of the dispute determination by the Review Officer, that any question of law which any of the parties to the dispute considers will or might affect the proceedings, or the entitlement to a determination, should be raised by that party in the course of these review proceedings and, if not then made, that omission will not detract from the finality of the decision of the review officer.

191 As well as having the opportunity to raise questions of law affecting a worker's entitlement to a determination by a review officer of the existence of a particular degree of disability, at the hearing before the review officer, the employer or the worker has other opportunities to take legal objections to the capacity of the Director to refer a dispute about a degree of disability under s 93D. For example, if the objection goes to a matter of the jurisdiction of the Director to receive or entertain the referral certiorari may lie, as demonstrated by the decision in Re Monger; Ex parte Dutch (supra) although, once the referral had got as far as a proceeding before a Review Officer under r 3(a) of the Act, it seems that certiorari or other judicial review will then no longer lie - s 84ZN(1).

192 In the present case, therefore, the fact that the degree of disability was determined by an order made by the Review Officer under s 84ZF, and the terms of that order of 6 March 2001, each reveal that the dispute about the level of disability was determined after hearing the parties and after the procedures followed as required by s 93D(9) and (10) and Pt IIIA of Div 3 of the Act had been applied. It is evident that choices may well be made by a party to such a dispute about whether or not an objection in point of law might be taken to the determination of a dispute about the level of a worker's disability in the course of that procedure. For example, an employer who considers that he has a strong case on the merits for establishing that the worker's disabilities were less than the relevant level claimed may decide that the more advantageous course for him to follow is to contest the dispute on the merits, rather than take objections in the nature of points of law about the entitlement of the worker to seek a referral or to any remedy which might flow from the worker's success on the resolution of the dispute referred. It would be difficult to accept that if, for tactical reasons, a party to such a dispute withheld from raising a point of law, which might have been determined in his or her favour, once a binding decision from the Review Officer is given, that objection in point of law can thereafter be raised at a further stage in the progress of the claim. A decision to decline to make such a legal objection for tactical grounds at that stage would seem to bear all the hallmarks of a waiver by the party withholding the objection, the result of which would prevent the objection being raised later.

193 In this case, however, there is no evidence to suggest that such a deliberate tactical decision was made by the respondent but the point has not been addressed because the record reveals that, when declining to register the election under s 93E(3), (4) and (6) the Director treated the late production of the medical evidence required under s 93D(6) [that is, the filing of Form 22] as the only determinative factor and, as such, decisive in denying the applicant's entitlement to make an election or to have it recorded. Because of the conclusion which I have reached that, non compliance with the time limits prescribed by s 93E(5) and (6) can be waived by an employer or that circumstances can arise which will estop or preclude the employer from relying upon such a statutory defence, it follows that the Director's consideration of the application to register the election of this applicant was erroneous in point of law in failing to consider, and if necessary, to investigate the possibility of such a waiver, estoppel or other preclusion which the applicant contends has occurred. If that were to be investigated as part of the duty resting upon the Director in deciding whether or not, notwithstanding the expiration of the statutory time limit for making an election, the circumstances prevented the employer from resisting an election on that ground, more evidence about this aspect of the case may have emerged. Such evidence might include evidence which may have compelled a finding that there had been a deliberate tactical decision by the first defendant not to raise such a legal point at the hearing for the determination of the level of disability. That, if it occurred, would show a deliberate and positive waiver to which the first respondent should be held.

194 It would seem, therefore, that the least relief which the applicant should obtain in the present proceedings is an order for mandamus to compel the Director to consider fully, and in accordance with the law which accepts that the statutory time limits can be waived or that circumstances will preclude a party from relying on them, whether in this case the applicant is entitled to make the election which he has attempted under s 93E(3)(b) and (6) and have that election recorded. But as I later explain, the legislation does not contemplate that the Director should ever exercise such an adjudicative role.

195 Even so, if the record now before the Court shows either, that there is no such possibility of any waiver or preclusion being established or, alternatively, that such a waiver or preclusion has clearly occurred, then an order in the nature of mandamus requiring the Director to reconsider the matter according to law would be superfluous because this Court can, and should, determine the matter finally either against, or in favour of, the applicant - see s 24(7) of the Supreme Court Act 1935.

196 At this point it is convenient to direct attention to the role of the Director once he had received the applicant's election with a request that it be registered in accordance with s 93E(3) and (6). There is no provision in the Act or regulations which expressly empowers the Director to refuse to register such an election. Insofar as this issue is dealt with at all, the indications are to the contrary because reg 19M of the Workers' Compensation and Rehabilitation Regulations (1982) provides:

"19M Election to retain right to seek common law damages

(1) An election under section 93E(3)(b) of the Act -

(a) is made by completing an election form in the form of Form 25 in appendix I and lodging it with the Director; and

(b) cannot be made unless -

(i) it is agreed that the degree of disability is not less than 16%; or

(ii) it is determined that the degree of disability is not less than 16%.

(2) If it is agreed that the degree of disability is not less than 16% the election form is to be accompanied by Form 24 in appendix I unless an agreement as to the degree of disability for the purpose of section 93E(3)(a), (4) or (9) of the Act was recorded under regulation 19K before the lodgement of the election form.

(3) If it is determined that the degree of disability is not less than 16% the election form is to be accompanied by evidence of the determination unless a determination of a dispute as to a degree of disability was recorded under regulation 19L before the lodgement of the election form.

(4) Subject to subregulation (5), on the day on which the Director receives the election form the Director is to -

(i) under regulation 19K(2)(a) the agreement (if any) accompanying the election form; or

(ii) under regulation 19L(2)(a) the determination (if any) accompanying the election form;

(b) register the election in a register kept for that purpose; and

(c) complete the relevant section of the election form and give a copy of it to the worker and the employer.

(5) The Director may refuse to register an election if not satisfied that the worker has been properly advised of the consequences of the election.

(6) This regulation applies to an election under s 93E(3)(b) of the Act that is commenced on or after the day on which the Workers' Compensation and Rehabilitation Amendment Regulations (No 11) 1999 came into operation."

197 On the face of it, therefore, when presented with an election in the proper form (Form 25) showing a determination of a level of disability of more than 16 per cent, the Director is required to register it in accordance with the Act. But, in my opinion, this should not be regarded as an obligation without exception because, plainly, if the election were obviously a forgery, or otherwise fraudulent, the Director would not be required to register it. But, in the absence of exceptions of that character there does not seem to be any scope for the Director to refuse to register an election on the basis of the existence, or supposed existence, of a legal objection which might have been, or might still be, raised by one or other of the contending parties. Indeed, it is most unlikely that Parliament ever intended to commit decisions of this nature, bristling with questions of law, to the Director. It is far more consistent with the structure of the amending legislation that such questions, if they are open or if they arise, should be dealt with by a Review Officer at a hearing where the parties attend, may be legally represented if leave is granted, and from whose decision a limited right of appeal exists.

198 This is but another consequence of the fact that disputes of these kinds are disputes between private parties concerning the nature and extent of their mutual private rights and duties and, as such, where the parties themselves are expected to conduct their causes according to their own chosen grounds and where each is capable of waiving rights, entitlements or defences which it may possess and where each party will be bound by his or her conduct of the dispute. For example, if there had been a clear and deliberate waiver of a statutory time limit defence by an employer then, when an ensuing determination of a level of disability was made in circumstances giving the worker a prima facie right to register an election, it would be inconsistent with, and repugnant to, the rights of the parties arising from such a waiver, for a Director to refuse to give effect to a determination of their rights which was the product of their choice of grounds upon which the dispute between them was to be determined. There can be no public interest in refusing to give effect to an adjudication of the rights between a contending worker and his employer, concerning a dispute over a level of the employee's disability, conducted in accordance with the issues of fact or law which the disputants present for decision.

199 It follows that I consider that the Director was in error in refusing to register the election, in the absence of an objection on the grounds of late filing of the Form 22 raised by the employer before the determination of the level of the disability by the order made under s 84ZF.

200 Now, however, the respondent seeks to advance that objection where it has been raised by that employer for the first time in the proceedings now before the Court. Whether the employer may now do so seems to me to depend on whether or not there is a clear case for or against a waiver or preclusion. Failing which, as already indicated, the remedy to be given by this Court should be an order in the nature of mandamus recognising the final nature of the decision by the Review officer, which the Director is obliged to recognise.

201 The passages already cited from the judgments in the Commonwealth v Verwayen (supra), especially the discussions by Brennan J at 424 - 426 and McHugh J at 497, mean that in the present case the respondent employer had the opportunity for raising any objection, including any point of law about the entitlement of the applicant to refer the question of the extent of his disability under s 93D(5) before, or at, the hearing of the determination of that dispute by the Review Officer under Pt IIIA Div 3. That determination was made after a hearing which led to the order made under s 84ZF. No such point of law relating to a statutory time limit was raised by the respondent, and the decision of the Review Officer has since become final in the absence of any appeal to the Compensation Magistrate under s 84ZN. I consider that the respondent is now precluded from raising, or attempting to rely on, the statutory time limit as a basis for impeaching the decision of the Review Officer, the election by the applicant or his lodgement of the election with the Director for registration. It is a sufficient ground for this conclusion that the respondent had an opportunity to raise the statutory time limit as an objection before, or during the course of, the proceedings before the Review Officer but failed to do so, the more so, because the decision of the Review Officer has since been rendered final.

202 It is, of course the case, that it is the making of an election out of time which is prohibited by s 93E(5) and that, in the circumstances of this case, an election could not be made or registered until after a determination of the dispute about the level of disability had been decided by a Review Officer. However that does not, in my view, mean that any point concerning the statutory time limit for making the referral can be left open until after the determination of the dispute by the Review Officer but before the registration of the election. This is because the time limit imposed under s 93E(6)(b), makes the extension of time available under that section dependant upon the date when the medical evidence under s 93D(6) was provided (that is, when the Form 22 was filed) and in this case, as always, the date of filing of the Form 22 was known or was ascertainable long before the determination by the Review Officer. In other words, in this and in any comparable case, the late filing of the medical evidence relied upon by the applicant, as required by s 93D(6), was a point which could and should have been taken at the hearing of the dispute before the Review Officer. If then taken and successfully established, it would have resulted in the worker's claim for that determination being dismissed or rejected.

203 Counsel for the Attorney General, intervening, however submitted that even if the Director were now to register the applicant's election the non-compliance with the time limit imposed by s 93E(6)(a) would remain so that the election, although registered, would not be one made "in the prescribed manner" - s 93E(3)(b). This would mean, so the submission ran, that if and when the applicant commenced an action for damages against his employer in the District Court of Western Australia, or any other court of competent jurisdiction, the employer would be able to plead that the court could not make an award of damages because the election was not made in the prescribed manner (s 93E(3)(b)) and that to do so would be contrary to Pt IV Div 2 of the Act - s 93C. Further, it was submitted, this would be an unanswerable defence and would lead inevitably to the applicant's case for damages failing or, perhaps, being struck out on the trial of a preliminary issue or on the defendant's application for summary judgment. The next step in the submissions advanced on behalf of the Attorney General was that, in such circumstances, this Court should decline to grant prerogative relief in the form of mandamus or certiorari in the exercise of the court's undoubted discretion to withhold such remedies because no benefit could be derived by the plaintiff in obtaining such relief and to grant them would be pointless in view of the inevitable fate of the proposed claim.

204 Obviously, these submissions proceed on the premise that an objection to the efficacy of the election, on the grounds that the time limits fixed by s 93E(6)(a) had not been satisfied, was still open and could be taken in the anticipated District Court proceedings. But I have concluded that such an objection should have been taken in the proceedings before the Review Officer under Pt IIIA Div 3 at the hearing before the decision under s 84ZF was made. Once that decision has been made, I do not consider that the objection can be made again, or could be made for the first time if the opportunity was not taken to do so on that occasion. On this basis, therefore, it would not be open to the employer to raise a defence in the anticipated District Court proceedings that the election which had been made and registered under s 93E(3)(b) was ineffective or not made in the prescribed manner. Consequently, a decision of this Court to issue a mandamus to the Director to register this election would not be futile or pointless and there would be no reason to exercise the discretion of the court to withhold such relief. Furthermore, a decision by this Court to issue mandamus to the Director in these circumstances, based on the conclusion that the respondent had waived any right to object to the making and registration of an election by the applicant under s 93E(5)(b) would itself be a final judgment binding on these parties. Consequently, the issue of the effectiveness of the election on these grounds could not be raised or contested again by either of the parties in the anticipated District Court proceedings or elsewhere.

Re Monger; ex parte TNT Australia Pty Ltd [2002] WASCA 223

205 At the hearing of this application in March 2004 counsel for the respondent employer submitted that an earlier decision of this Court, Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223 had determined that there could be no waiver by the parties of the procedural requirements prescribed by Pt IV Div 2 of the Act and, in particular, of the time limits for making an election by a worker fixed by subs 93E(5) and (6). In that case the Full Court (Wallwork, Anderson and Steytler JJ) held that, despite the consent of the worker and the employer to the Director accepting and registering an election to retain the right to seek damages at common law made by the worker after the termination day, that election could not stand and was ineffective. The decision of the court was to issue a writ of certiorari to quash that decision of the Director. Wallwork and Steytler JJ agreed with the reasons for decision of Anderson J who, on this issue, said (at [21]):

"Counsel for the worker also submitted that failure to observe the time limit prescribed by s 93E(6) is not fatal. He contended that the time limit was merely a procedural rather than a mandatory requirement. Whether this language still means anything in Australia is very doubtful since Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, but I take the submission to be that compliance with the requirements as to when or within what period an election is to be made does not condition either the right to seek damages at common law or the authority of the court to award damages. This is, of course, a matter of construction and I do not think that the Act can be so construed. The scheme of Div 2 of Part IV is generally to prohibit courts from awarding damages in work accident cases and then to precisely define the circumstances under which the right to seek damages may be retained. There must be a certain level of disability (specified by reference to exact percentage points), there must be a positive election to retain the right, the election must be made in a prescribed manner and form and it must be made within a specified period of time, the expiration of which is expressed so as to be precisely ascertainable. In other words, if I may borrow Lord Goff's analogy in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 754, the legislation locks the gate to this field of common law damages and then fashions the key which alone is capable of turning the lock.

I can see no basis for contending that a purported election made out of time under subs (6) is any more effective than would be a purported election made out of time under subs (5)."

206 In Re Monger; Ex parte TNT Australia Pty Ltd (supra) the election which the worker purported to make and to have registered with the consent of the employer followed on an agreement between them that the worker's degree of disability was more than the 30 per cent threshold prescribed by subs 93E(3)(a). In the present case the election purported to have been made by this applicant which he seeks to have registered by the Director follows on from a determination by a Review Officer that the applicant has a significant disability after resolution of the dispute under the provisions of Pt IIIA. However, these differences between the facts in the present case and those examined by the court in Re Monger; Ex parte TNT Australia Pty Ltd (supra) do not provide any basis to distinguish the application at the reasoning in that case. It is necessary, therefore, to proceed on the footing that it has been decided by this Court that there can be no consensual waiver of the time limits prescribed by s 93E(5) and (6). However, counsel for the applicant submitted that this Court should not follow the decision in Re Monger; Ex parte TNT Australia Pty Ltd (supra) in the present case and counsel for the Attorney General referred to the well-settled considerations upon which this Court should observe when asked to reconsider or to depart from one of its previous decisions. As these have been fully set out in the recent decision of Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [32] - [35] it is unnecessary to repeat them here.

207 It is, therefore, necessary to consider the conclusion reached in Re Monger; Ex parte TNT Australia Pty Ltd (supra) that there can be no waiver by the consent of the parties of the time limits prescribed by s 93E(5) and (6) of this Act. The passage previously cited from the judgment of Anderson J in that case rejected the submission, made by counsel for the worker, that the constraints upon the award of common law damages imposed by Pt IV Div 2 of the Act were procedural and not mandatory and questioned whether that distinction remained significant at present times. The reference to Lord Goff's analogy in Mannai Investment Co v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 that the legislation locks the gate to this field of common law damages and then fashions the key which alone is capable of turning the lock can only indicate a conclusion that Anderson J was of the view that the constraints upon the award of damages were not procedural and that compliance with the statutory procedure was mandatory and incapable of waiver. However, the principle that where the existence of a statutory right depends upon the fulfilment of a condition precedent, a person entitled to insist on the fulfilment of that condition may dispense with its compliance, unless it is enacted for the benefit of the public, cannot be doubted in the light of the decision in Commonwealth v Verwayen (supra).

208 There was no examination by the court in Re Monger; Ex parte TNT Australia Pty Ltd (supra) of the criteria for determining whether or not this statutory condition or available defence was of such a procedural character rather than of a jurisdictional character. For the reasons previously canvassed, the application of these established and accepted principles leads to the conclusion that the constraints upon the award of common law damages imposed by Pt IV Div 2 of this Act are procedural and not jurisdictional. Furthermore, there is the recent decision of the High Court in Dossett v TKJ Nominees Pty Ltd (supra) where Kirby J concluded that these constraints in this Act were only of the procedural kind and did not abolish or eliminate the right to damages as distinct from modifying the occasions in which a court, bound to give effect to this legislation, could award damages.

209 The case of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (supra) was a case dealing with the ability of a tenant, pursuant to a break clause in a lease, to give an effective notice to determine the lease under contractual provisions. As I read the speeches of their Lordships, the decision does not deal at all with the question of whether statutory provisions relating to causes of action are procedural or substantive or whether they can be waived by the actions of a party or parties for whose benefit they were established. Lord Goff was in dissent and the passage in his speech adapted in Re Monger; Ex parte TNT Australia Pty Ltd (supra) does not seem to be anything more than an elegant metaphor for expressing his Lordship's view of the facts in that case. With respect, I do not consider that it can, in any degree, be treated as determinative or persuasive on the issue of whether or not a time limit imposed by s 93E(6) can be waived or whether it is procedural rather than jurisdictional.

210 Nor does the decision in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 undermine or reject the distinction between procedural and jurisdictional statutory defences that has been established in the earlier authorities nor does it determine whether or not a party can be precluded from relying upon such a defence because of waiver or estoppel. That was a case concerning whether or not the Australian Broadcasting Authority had properly performed its functions in determining standards to be observed by commercial television broadcasting licensees relating to the Australian content of programmes. It was held by McHugh, Gummow, Kirby and Hayne JJ that an act done in breach of a condition regulating the exercise of a statutory power was not necessarily invalid. Whether it was invalid depended upon whether it was a purpose of the legislation to invalidate any act done in breach of a condition. It was decided that it was not a purpose of the Broadcasting Services Act 1992 (Clth) that a breach of s 160(d) was to invalidate any act done in breach of that section and, therefore, acts done by the Australian Broadcasting Authority in breach of s 160(d) were not invalid. I do not consider that anything in Project Blue Sky (supra) affects or detracts from the accepted principles, previously examined, for determining whether provisions such as these constraints upon the award of common law damages are procedural or jurisdictional, or as leading to the conclusion that time limits imposed by s 93E(5) and (6) cannot be waived.

211 It therefore appears, with all respect, that the decision in Re Monger; Ex parte TNT Australia Pty Ltd (supra) to the effect that s 93E(6) was not procedural in character but, rather, was mandatory and incapable of waiver was reached without regard to earlier decisions of the High Court of Australia directly relating to the issue for decision. As was said in Archer v Howell (1992) 7 WAR 33, a case which rests on an unstated assumption or, as the text books describe it, an assumption sub silentio, cannot constitute a binding precedent - see Malcolm CJ at 46. For this reason I do not consider that this Court can or should accept the decision in Re Monger; Ex parte TNT Australia Pty Ltd (supra) as authoritatively determining that the provisions of s 93E(5) and (6) of the Act are substantive or jurisdictional rather than procedural or that they are incapable of waiver in certain circumstances. As this is legislation of widespread and frequent application affecting every employee in this State who may wish to bring a claim for damages for personal injuries against his or her employer for alleged negligence, breach of contract or breach of statutory duty, I consider that it is most important that the court should not perpetuate error but should apply what it determines to be the correct legal principle.

212 It therefore follows, that the respondent is now precluded from relying on the statutory defence available under s 93E(6) to assert that the applicant's election under s 93E(3)(b) and (6) was made late. That being the case, and for reasons canvassed in [189]-[190] above, it also follows that the Director was in error in refusing to register the applicant's election because of an objection which the respondent was not then, and is not now, entitled to maintain. As the ground of the objection existed for the benefit of the private interests of the first respondent, there is no basis upon which the Director was entitled to rely upon that ground to refuse registration of the election at his own initiative. The situation, therefore, is that the applicant made an election to preserve his common law rights under s 93E(3)(b) and (6) and presented that election for registration by the Director in the prescribed manner. As there was no reason, in the particular circumstances, why registration of the election should not have been recorded by the Director, the Director failed to carry out the duty cast upon him by the Act and regulations to register the election. As the registration of the election is an indispensable condition for the applicant to succeed in obtaining an award of damages in common law proceedings if, otherwise, he can establish liability against the respondent to the requisite degree - s 93E(3)(b), this means that the applicant has established a failure by the Director to perform a duty to register the election, which arose in these circumstances. A writ of mandamus should issue against the Director to compel him to register the election, even though, in this case it was made late.

• The Question
• Background
• Waiver by Boral
• Facts
• Purported Election on 5 January 2000
• Purported Election on 3 April 2001
• Waiver or preclusion of reliance upon the statutory time limit
• Nature of a statutory defence
• Failure to raise time defence in review proceedings
• Re Monger; ex parte TNT Australia Pty Ltd [2002] WASCA 223