Re Monger; Ex Parte Cross [2004] WASCA 176 (13 August 2004)

Re Monger; Ex Parte Cross [2004] WASCA 176 (13 August 2004) - WASCA 2004 case summary — Zoe

[161]

"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)."

[319]

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.

[337]

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.

[354]

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.

[362]

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.

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Re Monger; Ex Parte Cross [2004] WASCA 176 (13 August 2004)

Legislation Cited (15)

Cases Cited (61)