Sotir Trpenoski v BHP Flat Products

LOWER COURT District Court JURISDICTION : LOWER COURT 814/01 FILE NUMBER(S) : LOWER COURT Phelan J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41123/03

SHELLER JA SANTOW JA TOBIAS JA

1 July 2003 SOTIR TRPENOSKI v BHP FLAT PRODUCTS Judgment 1 SHELLER JA: I agree with Tobias JA. 2 SANTOW JA: I agree with Tobias JA. 3 TOBIAS JA: This is an application for leave to appeal against the decision of his Honour Judge Phelan of the District Court given on 5 August 2002 refusing the claimant leave pursuant to s 151D of the Workers Compensation Act 1987 (the 1987 Act) to commence proceedings in that Court for damages in respect of an injury sustained by the claimant whilst in the employ of the opponent. The appeal has been heard concurrently with the leave application. 4 The claimant is a 56 year old male who commenced employment with the opponent on or about 21 January 1970 and ceased that employment on 25 February 2000. He alleges that he suffered an injury to his back on 14 April 1998 when he was required to lift a 210 litre capacity drum of oil onto a pallet. In order to achieve this objective he had to place the drum on the pallet by lifting one end of it and manoeuvring it so that it stood upright on the pallet. In the course of so doing he felt pain the back of his neck and his lower lumbar region which, according to the medical evidence before the primary judge, significantly aggravated existing and ongoing degenerative and congenital changes in his lumbar spine. He continued working but ultimately the pain was so severe that, on 25 February 2000, he ceased his employment. 5 As he wished to claim common law damages against the opponent, he was by s 151D(2) of the 1987 Act only entitled "to commence court proceedings for damages in respect of the injury concerned against" his employer within three years of the date the injury was received "except with the leave of the court in which the proceedings are to be taken". 6 The three year limitation period referred to expired on 14 April 2001. On 26 November 2001 the claimant filed in the District Court at Wollongong a Notice of Motion seeking the following orders:

(1) That the plaintiff be granted leave to file a Statement of Claim pursuant to s 151D of the Workers Compensation Act to commence proceedings against the defendant more than three years after the date of injury.

(2) That the Statement of Claim be deemed to be filed on the date of the filing of this notice of motion. 7 No statement of claim was lodged with the District Court at the time the Notice of Motion was filed on 26 November 2001 although what was referred to as "a proposed Statement of Claim" was annexed to the affidavit of the claimant's solicitor filed in support of the motion. That draft statement of claim alleged that the claimant's injuries were caused by the negligence of the opponent particulars of which were set out in paragraph 5 thereof and claimed damages. Particulars of the claimant's injuries, disabilities, economic loss, loss of superannuation benefits and out of pocket expenses were also set forth in the draft statement of claim. There was also annexed to the solicitor's affidavit a statement pursuant to Part 9 rule 27 of the District Court Rules. 8 Amendments relating to the recovery of common law damages by workers against their employers were made to the 1987 Act by the Workers Compensation Legislation Further Amendment Act 2001 (the 2001 Act). By s 2(2) of the 2001 Act the amendments to the 1987 Act relevant for present purposes were taken to have commenced on 27 November 2001. Schedule 4 [14] of the 2001 Act amended Schedule 6 Part 18C of the 1987 Act by omitting clause 9 of that Part and inserting in lieu thereof the following new provision: "9. Amendments relating to common law damages (1) An amendment made by Schedule 1 to the Workers Compensation Legislation Further Amendment Act 2001 applies in respect of the recovery of damages after the commencement of the amendment (and so applies even if the injury concerned was received before the commencement of the amendment) but does not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment." 9 The "commencement of the amendment" referred to in clause 9(1) was, as I have already observed, 27 November 2001. As it was conceded by the claimant that the effect of the amendments made by Schedule 1 to the 2001 Act in respect of the recovery of common law damages and, in particular, the effect of the new s 151G and 151H may be that the claimant had not suffered the degree of permanent impairment that would qualify him for an award of damages pursuant to those provisions, it became critical, if he was to recover common law damages, for him to have commenced proceedings for their recovery in a court before the commencement of the amendments on 27 November 2001. Accordingly, in response to the provisions of clause 9(1) the claimant on 26 November 2001 filed in the District Court the Notice of Motion to which I have referred to in [6] above. 10 The issue before the primary judge was whether, no statement of claim seeking damages having been filed prior to 27 November 2001, the filing of the Notice of Motion for leave was a sufficient compliance with the requirements of clause 9(1) that proceedings for the recovery of damages be commenced in a court before 27 November 2001. 11 The primary judge held that the filing of the Notice of Motion did not constitute compliance with the requirements of clause 9(1). In his view, a notice of motion did not constitute proceedings for the recovery of damages but was merely an application for leave to commence such proceedings. The claimant submits that his Honour erred in so finding on the following grounds:

a. The substantive rights of the claimant were to be determined as at the time of the institution of proceedings in whatever form they took, namely, the filing of the Notice of Motion for leave on 26 November 2001;

b. The effect of this Court's decision in Whisprun v Sams & Ors (2002) NSW CA 394 supported the proposition that it mattered not whether the statement of claim was filed before, the same time as, or after the filing of the Notice of Motion for leave and that a plaintiff who had not filed a statement of claim but had sought leave to do so should not be placed in a different position to a plaintiff who has filed a statement of claim but has not attained leave at the time of doing so;

c. No distinction should be drawn between the process of instituting proceedings adopted by the claimant, namely, the filing of a notice of motion, and the filing of the statement of claim before leave is granted as such a distinction would be based upon form rather than substance;

d. The primary judge, having found that had proceedings been commenced for the recovery of damages, he would have granted leave to do so, should have granted leave nunc pro tunc so that, in effect, the statement of claim should be deemed to have been filed on the date that the Notice of Motion for leave was filed, namely, on 26 November 2001. 12 As I have noted, the critical issue before the primary judge and before this Court is whether a notice of motion for leave to commence proceedings pursuant to s 151D(2) of the 1987 Act constitutes the commencement of proceedings for the recovery of damages within the meaning of clause 9(1) of the 1987 Act (as amended by the 2001 Act). In my opinion, the primary judge was correct in finding that it did not. 13 Although the 1987 Act does not define the term "proceedings" for the purpose of clause 9(1) of Part 18C of Schedule 6 to that Act, the term must take its meaning from the governing Act and rules of the court in which it is alleged that the proceedings have been commenced: in this case, the District Court. Thus the term "proceedings" is defined in s 4(1) of the District Court Act 1973 (the DC Act) to mean, so far as is presently relevant, "a) Where occurring in a provision of Part 3 and in subsections (3) and (5), means civil proceedings." 14 "Civil proceedings" is defined in s 4(1) to mean "proceedings in the Court in its civil jurisdiction". 15 Section 4(3) of the DC Act then provides: "A reference in this Act to the commencement of proceedings at a proclaimed place (however expressed) is a reference to commencement of those proceedings by the lodging of a document commencing the proceedings with the Registrar for that place." 16 Part 3 of the DC Act deals with the civil jurisdiction of the Court. Section 44(1) of the DC Act (as it was prior to 27 November 2001 when it was amended by the 2001 Act) provided that the Court had jurisdiction to dispose of, inter alia: "(a) any action of a kind: (i)…. (ii) in which the amount claimed does not exceed $750,000…" 17 It would seem that s 44(1) drew a distinction between an "action" and "proceedings": see s 44(1)(e). The term "action" was (and is) defined in s 4(1) to mean: "action in the Court". 18 The District Court Rules (the Rules) maintain the distinction between an "action" on the one hand and "proceedings" on the other. Part 5 of the Rules is headed "Commencement of Proceedings". The provisions of Division 1 of that Part speak in terms of "an originating process", an expression defined in Part 1 rule 4(1) of the Rules in these terms: "Originating process, in relation to any proceedings, means the document by the lodging of which the proceedings are commenced in the Court in its civil jurisdiction." 19 Part 5 rule 4 is headed "Time of Commencement" and is in the following terms:' "4. Subject to s 21E of the Local Court (Civil Claims) Act 1970, and to r 13, proceedings shall be commenced when the originating process in relation to the proceedings is filed."

Neither of the provisions to which this rule is subject are presently relevant. 20 The foregoing provisions of the Act and the Rules were relied on by the primary judge and by the claimant as setting the relevant statutory context in which the question to which I have referred in [10] above was to be resolved. However, a more critical provision of the DC Act and the Rules to which I shall return appears to have been overlooked. 21 The claimant also called in aid a reference in Black's Law Dictionary 6th ed to a definition of "proceeding" and to what was said by Starke J in Cheney v Spurner (1928) 41 CLR 532 at 538-9 and by O'Loughlin J in Forrest v Kelly (1991) 105 ALR 397 at 408 to the effect that the word "proceeding" meant the "invocation of the jurisdiction of the court by process". Reliance was also placed upon the meaning given to the expression "legal proceedings" in s 41 of the Trade Marks Act 1905 (UK) by Lord Hanworth MR in Keystone Knitting Mills Trademark (1929) 1 Ch 92 at 103. 22 It was then submitted by the claimant that there was nothing in the 1987 Act in the DC Act or Rules which limited the meaning of "proceedings" to those commenced by statement of claim. However, this is not correct. Section 53 of the DC Act provides: 53. Manner of commencement of actions An action and proceedings ancillary to an action shall be commenced in the manner prescribed by the rules.

The rules relating to the commencement of actions are found in Division 2 of Part 5 of the Rules. 23 Division 2 of Part 5 of the Rules is headed "Manner of commencement of actions". Part 5 rule 6(1)(a) expressly provides that an action (other than for the recovery of a debt or liquidated damages) shall be commenced by the lodging by the plaintiff with a registrar of an ordinary statement of claim. A statement of claim "lodged to commence an action" is required to contain such of the matters referred to in Part 5 rule 6A of the Rules as is relevant. Furthermore, Part 5 rule 6B requires certain other documents to be filed with the statement of claim where a claim is made for damages in respect of personal injuries in "any proceedings". 24 The "proceedings" in the present case were purportedly "commenced" by the filing of a notice of motion. "Motions" are dealt with by Part 16 of the Rules. Part 16 rule (4) is in the following terms: "1. An interlocutory or other application, in or for the purposes of or in relation to an action, shall be made by motion.

Part 16 rule 2(1) provides that a person shall not move the court for any order unless before moving he or she has filed a notice of the motion and has served the notice on each respondent. 25 In my opinion it is clear from the foregoing provisions that for an action for the recovery of damages to be validly "commenced" by the claimant in the District Court it was necessary for an ordinary statement of claim to be lodged with a registrar in compliance with Part 5 rule 6(1)(a) of the Rules. Unless and until this occurred no proceedings "for" the recovery of damages were properly commenced. I see no reason to depart from the view that the reference in clause 9(1) of Part 18C of Schedule 6 to the 1987 Act to the commencement in a court of "proceedings" for the recovery of damages should be construed other than as a reference to the commencement of such proceedings in accordance with the requirements of the court in which it is intended that those proceedings be so commenced or, to adopt the words used in s 151D(2) of the 1987 Act, "the court in which the proceedings are to be taken". 26 I do not consider that this Court's decision in Whisprun requires any different conclusion. That case did not involve any issue as to whether the proceedings had been relevantly commenced for the purpose of clause 9(1). In that case Sperling J (with whom Beazley and Heydon JJA agreed) cited extensively from the judgment of Sheller JA (with whom Beazley JA and Sheppard AJA agreed) in Jol v State of New South Wales (1998) 45 NSWLR 283 at 286-290 in which, on the authority of the decision of this court in Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported) Handley JA confirmed that proceedings commenced without leave contrary to a requirement for leave was not a nullity but an irregularity capable of being cured by a subsequent grant of leave and that, in appropriate circumstances, that leave may be granted with retrospective effect after the proceedings had been commenced. 27 Sperling J then said of s 151D(2) of the 1987 Act that its purpose was "…to preclude claims from being brought after the lapse of the specified time, otherwise and under the supervision of the Court for cause shown. That purpose is equally well served by deciding the question of leave after the proceedings are commenced as by deciding the question before the proceedings are instituted." 28 Given that the filing of a statement of claim without leave was no more than an irregularity which could be remedied by a subsequent grant of leave, Whisprun it is no more than authority for the proposition that leave to commence proceedings may be granted pursuant to s 151D(2) of the 1987 Act irrespective of whether the proceedings in respect of which leave to commence is sought have actually been commenced before or after the question of leave is determined. In my opinion, the decision does not assist the resolution of the present case which turns on the true construction of clause 9(1) of Part 18C of Schedule 6 to the 1987 Act. 29 As I have observed, the "proceedings" which are to be commenced within the meaning of clause 9(1) must be proceedings "for" the recovery of damages. Such proceedings may only be commenced in the District Court by lodging an ordinary statement of claim with a registrar of that court. No such statement of claim was lodged by or on behalf of the claimant prior to 27 November 2001. All that was filed was a notice of motion seeking leave from the District Court, being the court in which the proceedings "are to be taken", for leave to commence such proceedings more than three years after the date on which the claimant's injury was received. 30 As the primary judge correctly concluded, the notice of motion so filed constituted an application for leave to commence proceedings for the recovery of damages: it did not, itself, constitute the commencement of those proceedings. It is more than apparent that an application for leave to commence proceedings assumes that such proceedings have not been commenced or have not been validly commenced. Given that the act of lodging an ordinary statement of claim with a registrar without first obtaining leave to do so would not constitute that act a nullity but merely an irregularity, it follows that there was nothing to prevent the claimant from lodging a statement of claim on 26 November 2001 at the same time as he filed his notice of motion. However, this was not done. In my opinion that omission was fatal to the claimant's attempt to avoid the consequences of clause 9(1). 31 It was nevertheless submitted on behalf of the claimant that the distinction drawn by the primary judge between the filing of a notice of motion for leave to commence proceedings and the irregular filing of a statement of claim without leave was artificial and, in the present circumstances, worked an injustice to the claimant given that the primary judge, had clause 9(1) been satisfied, would have been prepared to grant leave. It was further submitted that his decision meant that, on what might be regarded as a technicality, the claimant was left without any claim for common law damages in respect of the injury he sustained given the limitations upon the recovery of such damages effected by the 2001 Act. Furthermore, it was submitted that there was no logical or principled reason to place the claimant at a disadvantage where he has properly sought leave to commence proceedings in circumstances where, until such leave was granted, he was disentitled by s 151D(2) of the 1987 Act from lodging a statement of claim to in fact commence such proceedings. 32 With respect, I do not regard the omission of the claimant to lodge an ordinary statement of claim with a registrar of the District Court prior to 27 November 2001 as a technicality. It was, so it seems to me, an omission of substance. But that omission had its benefits from the claimant's point of view. As was pointed out by the primary judge and as submitted by the opponent before this Court, an injured worker is required to elect between common law damages or lump sum compensation and the commencement of proceedings for the recovery of damages is, under the 1987 Act, deemed to be such an election. 33 Accordingly, had leave not been granted or had the ultimate action for damages been unsuccessful, the claimant would have been disentitled to claim lump sum compensation although he would still be entitled to weekly compensation. It is thus possibly to the claimant's ultimate advantage that he did not on or before 26 November 2001 lodge an ordinary statement of claim and thus commence proceedings for the recovery of damages for that omission means that he may still be entitled to claim lump sum compensation of which he would have been deprived had he commenced proceedings in accordance with the requirements of Clause 9(1) but failed to obtain leave, not established liability or otherwise obtained damages in an amount which may have been less than that to which he would otherwise be entitled by way of lump sum compensation. 34 Nor do I consider that any disadvantage the claimant may suffer as a consequence of strictly complying with s 151D(2) by not lodging a statement of claim with a registrar which, absent leave, would be an irregularity justifies adopting a construction of the concluding words of clause 9(1) which they cannot properly bear. Had the words "in respect of" been substituted for the word "for" then a more expansive meaning may have been given to the type of "proceedings" which could qualify. But the intentional use by the draftsman of the word "for" in the last two lines of clause 9(1) in marked contrast to the use of the words "in respect of" twice in the preceding portion of the provision militates against any such construction. 35 Finally, the claimant submitted that as the primary judge found that it was a proper case for the grant of leave had proceedings for the recovery of damages been commenced in time, he ought to have found that the date for the grant of leave was the date of the filing of the notice of motion upon the basis that it was at that date that the claimant's rights were to be ascertained. However, even if this was so and the date for the grant of leave was deemed to be the date of the filing of the notice of motion, this would not overcome the fact that proceedings for the recovery of damages were not commenced as at that date. In my opinion the only relevant inquiry before the primary judge was whether the filing of the Notice of Motion on 26 November 2001 was the commencement of proceedings for the recovery of damages within the meaning of Clause 9(1) of Part 18C of Schedule 6 to the 1987 Act. His Honour that it was not and, in my opinion, he was correct in so doing. 36 Accordingly, for the foregoing reasons, I propose that leave to appeal be refused and that the summons for leave be dismissed with costs. **********

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