1 PULLIN JA: Persons injured at work and claiming workers' compensation face restrictions on the right to recover common law damages. As the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act) stood at the relevant time in this case, such a person was required to, inter alia, elect to claim such damages within a specified time, the election had to be registered and the Director of Dispute Resolution (Director) had to give notice to the worker that he had registered the election. If the injured worker sued for common law damages, the trial judge was directed by s 93K(4)(c)(i) of the WCIM Act to award damages only if certain events had occurred. One such event was that the court proceedings were commenced:

[W]ithin ... the period of 30 days after the Director gives the worker written notice that [he] has registered the election.

2 In this case, the respondent, as plaintiff, commenced proceedings in the District Court claiming common law damages before making an election.

3 The appellant, as defendant, made an application in the District Court to have the action summarily dismissed. That application was dismissed. The appellant appeals against the dismissal of the application.

4 The appellant argued in the District Court that proceedings could only be commenced in the window of time between the Director's notice and a date 30 days thereafter. In effect, the appellant argued that the proceedings had to be commenced 'during' the period commencing with the Director giving notice and expiring 30 days after that date.

5 The respondent argued that the word 'within' in the section meant 'not later than' and in consequence, providing the appellant makes an election, registers it and a Director gives notice of the registration before judgment, the section will have been complied with.

6 The trial judge considered that the respondent's argument had much to commend it [54], but further considered that some observations of this court in Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 were 'decisive' [57] and, in effect, compelled him to conclude that the appellant's argument should be accepted. However, his Honour went on to say that because the section was procedural because it only barred the remedy and not the right, proceedings could be 'validated on a retrospective or nunc pro tunc basis' and the appellant's application for summary judgment should be dismissed [65].

7 The appellant, on appeal, repeats the arguments advanced below and adopts the reasoning of the trial judge, which was, in effect, that proceedings had to be commenced 'during' the period of 30 days after notice. The appellant submits that the trial judge erred in concluding that some form of 'retrospective or nunc pro tunc' order could be made to validate the proceedings.

8 The respondent has filed a notice of contention seeking to sustain the judgment, which notice repeats the argument, rejected by the trial judge, that the requirement that proceedings had to be commenced 'within the period of 30 days' after the Director's notice meant 'before the end of' the 30 day period, and that there was no requirement that proceedings had to be commenced 'after' the Director's notification.

9 Section 93K of the WCIM Act, as it stood at the relevant time, was designed to require promptitude by a worker wishing to claim common law damages. There is no doubt that the word 'within' may mean 'during': see Ward v Walton [1989] NTCA 6; (1989) 99 FLR 21, 25. However, there are many cases where, in circumstances requiring promptitude by a claimant in either giving notice or bringing proceedings, the argument that the appellant advances has been dismissed. An early example is found in Earl of Morton's Trustees v Macdougall [1944] SC 410. In that case, legislation provided that compensation for damage done to a tenant's crops by game should not be recoverable from the tenant's landlord unless notice in writing of the claim was given to the landlord 'within one month after the expiration of the calendar year ... in respect of which the claim is made'. Notice was given by a tenant in December of the year in which the tenant's claim was made. The tenant's landlord argued that notice had to be given, and could only be given, in January of the following year. That argument was rejected by the Court of Session, which held that the word 'within', when applied to a period of time, 'most usually' meant 'before the end of' that period (413). Therefore, notice before January was notice before the end of January. The same type of reasoning has been applied in Australian cases where legislation required promptitude in the bringing of proceedings: see Ward v Walton; Watson v WorkCover Queensland [2005] QSC 225; [2006] 1 Qd R 587; Dicken v BHP Billiton Ltd [2004] VSC 215; Yamamori (Hong Kong) Ltd v CTG Pty Ltd [1992] NTSC 70; (1992) 109 FLR 249. See also the English case of R v Inland Revenue Commissioners; Ex parte Knight [1973] 3 All ER 721, 727 - 728. The word 'within' meaning 'before the end of' or 'no later than' has also been adopted in other contexts: see Plumor Pty Ltd v Handley (1996) 41 NSWLR 30 [34] (McClelland CJ). Adopting that meaning here gives effect to the scope and purpose of the section read in the context of the legislation as a whole.

10 The appellant was unable to refer to any superior court case supporting its submissions that the section should be construed as requiring proceedings to be commenced during the 30 day period referred to. The appellant submitted that, because the word 'period' appeared in s 93K and not in the legislation in the other cases, and because s 93K stipulated a sequence of procedural steps to be followed by an injured person wishing to preserve his or her right to recover common law damages, that the section could be distinguished from the 'different statutory provisions in different contexts' construed in the other cases. That is no basis for distinguishing the other cases which, one way or another, involve the construction of statutory provisions that refer to a period of time and stipulate a sequence of events to be followed by a claimant. Earl of Morton's is an example.

11 Finally, it is necessary to say that there was nothing said by this court in Thomas Peacock which supported the appellant's submissions, or in any way bound the judge in the District Court to conclude that the proceedings had to be commenced 'during' the 30 day period. Thomas Peacock was a case about whether or not the Limitation Act 2005 (WA) applied. In the course of the reasons, the court referred to s 93K(4)(c)(i) and paraphrased it. The issue in this case was not addressed at all in that case. The appellant accepted that there was nothing in Thomas Peacock which in any way bound the District Court judge to reach the conclusion that he did. His Honour therefore erred in his construction of the section. His instinct to accept the submissions of the respondent was correct.

12 As a result, the respondent's notice of contention should be upheld. The judgment was correct based on the reasoning that the proceedings had to be commenced before the end of the period and not 'during' the period. Having reached that conclusion, it is unnecessary to deal with the question of whether some form of retrospective or nunc pro tunc order could be made to validate proceedings had the alternative construction of the section been preferred. In any event, the respondent was unable to formulate such an order. The respondent suggested that the court may make a declaration that proceedings were deemed to have been commenced by the respondent (as plaintiff) in accordance with the time allowed by s 93K, but no authority was proffered by the respondent in support of the contention that this court had the authority to make a declaration in that form.

14 NEWNES JA: I have had the benefit of reading in draft the reasons for decision of Pullin JA. I respectfully agree with his Honour that, contrary to the view of the primary judge, nothing said by this court in Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 bears upon the issue which was before his Honour, much less was decisive of it. That case was concerned with a different question concerning the application of the Limitation Act 2005 (WA). The issue on this appeal appears untrammelled by judicial authority.

15 I have, however, arrived at a different conclusion to Pullin JA on the substantive issue. In my opinion, the effect of s 93K(4)(c)(i) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) is that a court can only award damages to an injured worker if court proceedings for damages are commenced after the date upon which the worker is given written notice that the Director has registered the worker's election to retain the right to seek damages and before 30 days have elapsed from that date. I am of that view for the following reasons.

16 The respondent was at the relevant time employed by the appellant as a patient care assistant. The respondent alleges that, on 18 June 2008, she was injured in the course of her employment while pushing a bed with a heavy patient on it. The respondent subsequently lodged a claim for workers' compensation under the Act. Liability has not been admitted by the appellant and the issue of the appellant's liability to pay workers' compensation remains unresolved. It seems from an affidavit filed on behalf of the appellant in support of an application for an extension of time within which to appeal that the issue of liability still remains unresolved some five years after the alleged accident because of lengthy delays on the respondent's part.

17 The respondent has obtained an assessment of her whole of body impairment percentage, pursuant to s 93L(2)(b) of the Act, of 18%. However, the respondent has not elected to retain the right to seek common law damages pursuant to s 93K of the Act. Because the appellant's liability to pay workers' compensation is still unresolved, it is accepted by the parties for the purposes of these proceedings that the time within which the respondent is required to make such an election has not yet expired. In his reasons for judgment, the primary judge noted that it was common ground before him that the respondent may at some time in

the future make an election and request that it be registered by the Director for the purposes of s 93K.

18 Notwithstanding that no election had been made, on 16 June 2011 the respondent commenced an action for damages against the appellant in respect of her alleged injuries. That, it seems, was done in view of the imminent expiry of the three year limitation period for such an action under the Limitation Act 2005 (WA).

19 The appellant applied for summary judgment in the action on the basis that the action was unsustainable because no election to retain the right to seek damages had been made by the respondent and registered by the Director, as required by s 93K(4) of the Act. The application was dismissed by a deputy registrar of the District Court: Austin v St John of God Health Care Inc [2012] WADC 167.

20 The appellant appealed against that decision. The appeal to the primary judge was treated by the parties and by his Honour as the trial of a preliminary issue as to 'whether in [the action], by reason of s 93K(4)(c)(i) of the [Act] the court cannot award damages to the [respondent]'. That provision has since been amended but at the material time provided that damages could not be awarded unless the action for damages was 'commenced within the period of 30 days after the Director gives the worker written notice' that an election by the worker to retain the right to damages had been registered. The respondent contended that s 93K(4)(c)(i) was satisfied if the action was commenced not later than 30 days after the Director gave the notice, so that it was satisfied if the action was commenced before the notice was given. The appellant contended that the action had to be commenced within the 30 day period after the Director gave the notice.

21 His Honour found that the court could award damages. He considered that he was bound by the decision of this court in Thomas Peacock to find that damages could not be awarded unless the action was commenced within the 30 day period after the Director gave notice of registration of an election to retain the right to damages. However, his Honour found that while the action had been commenced prematurely, that could be cured by a nunc pro tunc order made at any time prior to an assessment of damages. His Honour therefore dismissed the appeal: Austin v St John of God Health Care Inc [No 2] [2013] WADC 42.

22 The appellant now appeals to this court against the decision of the primary judge.

23 The substantive issue on the appeal is the respondent's contention that the decision of the primary judge should be upheld on the additional ground that (contrary to his Honour's finding) damages can be awarded so long as the action for damages is commenced not later than 30 days after the Director gives written notice that an election to retain the right to damages has been registered.

24 That issue turns on the proper construction of s 93K(4) of the Act, as it then stood. That provision is contained in div 2 of pt IV of the Act. Division 2 applies to the awarding of damages against a worker's employer in respect of an injury suffered by the worker: s 93B.

25 Section 93K was introduced as part of wide-ranging amendments to the Act made by the Workers' Compensation Reform Act 2004 (WA). They included a number of amendments to the provisions of the Act relating to restrictions on the awarding of damages for personal injury. As this court observed in Thomas Peacock, the evident purpose of those amendments was to deter small, disproportionately costly, claims for damages being brought in respect of workplace accidents [30].

26 The relevant provisions of the Act are as follows:

93C Limit on power of courts to award damages

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

(4) Damages in respect of an injury can only be awarded if -

(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and

(b) the Director registers the election in accordance with the regulations; and

(c) court proceedings seeking the damages are commenced within -

(i) the period of 30 days after the Director gives the worker written notice that the Director has registered the election; or

(ii) any further time provided for in the regulations to allow for things to be done before court proceedings are commenced;

(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.

27 (Section 93K(4)(c) has since been amended to omit the words 'within' and 'the period of 30 days', so that it now simply requires that court proceedings seeking damages 'are commenced after the Director gives the worker written notice that the Director has registered the election').

28 An election under s 93K(4) of the Act to retain the right to damages can only be made if either the worker and the employer agree that the worker's whole of body impairment is at least 15% or it has been assessed to be at least 15%, and that agreement or assessment has been registered by the Director at the written request of the worker: s 93L(2).

29 If a claim for weekly payments of workers' compensation has been made in respect of the injury, an election to retain the right to damages cannot be made later than one year after the claim for weekly payments was made, unless a later date is fixed under s 93M(3) or (4): s 93M(1). Under s 93M(3), if a determination of the liability of the employer to make weekly payments is made more than three months after the claim is made, the termination date is nine months after the determination of liability. Section 93M(4) enables the Director to extend the termination date in certain circumstances.

30 A failure to elect to retain the right to damages within the required time is fatal to any entitlement of the worker to recover damages for the injury. So too is a failure to commence an action for damages within the time specified. The stipulation of that time is clearly intended to ensure that proceedings are brought promptly after the election has been made and registered.

31 In my view, it is evident from both the language and the purpose of the Act that the effect of s 93K(4)(c)(i) is that the proceedings must be commenced after notice of the registration of an election is given to the worker. The Act provides for a staged approach to the worker's right to obtain an award of damages. The purpose of s 93K(4) is to act as a screening or filtering device to deter claims for damages being brought until it has been established that they satisfy the statutory threshold. As Kirby J said in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [61], in relation to an earlier provision having similar effect, it is a 'procedural gateway through which the [worker] had to pass before being entitled to commence proceedings for damages'.

32 The first step is the determination whether the worker has suffered a whole of body impairment of at least 15%. As mentioned above, no election to retain the right to damages can be made until that is resolved and the relevant agreement or assessment resolving it is registered by the Director: s 93L(2). Once the agreement or assessment is registered, an election may then be made by the worker. If an election to retain the right to damages is made, that election must also be registered by the Director. Once the election has been registered and the Director has given the worker written notice of its registration, legal proceedings for damages must be commenced 'within the period of 30 days' after the Director gives the notice.

33 In my opinion, the words 'within the period of 30 days' clearly mean that the proceedings must be commenced within the 30 day period immediately after the worker is given notice of the registration of his or her election. That is, the proceedings must be commenced after the notice is given but not later than 30 days after it is given. That is made plain by the stipulation that the proceedings must be commenced within 'the period' of 30 days after the notice is given.

34 That construction is consistent too with the Minister's second reading speech on the Workers' Compensation Reform Act 2004 (WA), in which, having described the procedure now contained in div 2 of pt IV of the Act for a worker to elect to retain the right to seek damages, the Minister said:

Upon the worker receiving notification of the registration of the election, he or she will be required to lodge a writ within 30 days or in accordance with the District Court rules.

35 I do not accept the respondent's contention that s 93K(4)(c)(i) is to be understood to mean simply 'not later than' 30 days after the worker is given notice of registration of the election; that is, that the proceedings can be commenced at any earlier time. I do not consider the cases relied on by the respondent support that construction. While it can readily be accepted that the word 'within' may, in a particular statutory context, mean simply 'not later than' the time or event specified, the meaning it bears must, of course, depend upon the context. We were not referred to any cases where the precise language used in s 93K(4) has arisen for consideration and my own research has not unearthed any. The cases relied upon by the respondent depended upon provisions in different terms and in different contexts.

36 Thus, in Earl of Morton's Trustees v Macdougall [1944] SC 410, the statute provided that damage to crops by game was not recoverable by a tenant from his landlord 'unless notice in writing of the claim is given to the landlord within one month after the expiration of the calendar year in respect of which the claim is made'. Notice was given to the landlord on 16 December 1942 in respect of damage done in 1942. The court rejected an argument that the notice was premature. It held that the provision was intended to prevent stale claims being made and meant that notice had to be given 'not later than' one month after the end of the calendar year.

37 In Ward v Walton [1989] NTCA 6; (1989) 99 FLR 21, s 44(3)(b)(i) of the Limitation Act 1981 (NT) provided that the court could not extend a limitation period under the Act unless satisfied that the facts material to the plaintiff's case were not ascertained by her until sometime within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was 'instituted within 12 months after the ascertainment of those facts by the plaintiff'. It was held that 'within 12 months after the ascertainment of those facts' meant not later than 12 months after the facts were ascertained. The 12 month period was the 'outer limit', so that it was sufficient if (as in that case) an action was commenced before the material facts were ascertained. Asche CJ said that the mischief at which the Act was aimed was undue delay in bringing an action after the material facts have been ascertained and that mischief was prevented if the action was brought earlier. Gallop J agreed with Asche CJ and said that to read 'within' as meaning 'before the end of' gave effect to the subject-matters, scope and purpose of the Act.

38 That case was followed in Yamamori (Hong Kong) Ltd v CTG Pty Ltd [1992] NTSC 70; (1992) 109 FLR 249, which involved the same provision.

39 A similar issue arose in Watson v WorkCover Queensland [2005] QSC 225; [2006] 1 Qd R 587, where s 308 of the WorkCover Queensland Act 1996 (Qld) provided that a claimant may bring a proceeding for damages after the limitation period had expired in certain circumstances, but s 308(2) stated that 'the proceeding must be brought within 60 days after a compulsory conference for the claim is held.' Mullins J considered that s 308(2) was analogous to the provision considered in Ward v Walton and accordingly construed it as requiring the proceeding to be brought not later than 60 days after the compulsory conference, so it was sufficient if brought beforehand.

40 In Dicken v BHP Billiton Ltd [2004] VSC 215, the relevant provision of the Limitation of Actions Act 1936 (SA) was in the same terms as that considered in Ward v Walton. Ashley J followed the decision in Ward v Walton [18] - [20].

41 In R v Inland Revenue Commissioners; Ex parte Knight [1973] 3 All ER 721, a question arose as to whether proceedings to recover a penalty had been commenced in accordance with the Taxes Management Act 1970 (UK) which provided (relevantly) that 'proceedings for the recovery of any penalty may be commenced at any time within three years from the final determination of the amount of tax covered by the assessment ...'. The Court of Appeal rejected an argument that the proceedings were premature because a final determination had not been made when they were commenced. It held that, having regard to the operation of the relevant legislation as a whole, 'within three years from the final determination' must mean 'not later than three years from the final determination' (original emphasis) [727] - [728].

42 In a contractual context, in Plumor Pty Ltd v Handley (1996) 41 NSWLR 30, the contract was subject to the consent of the Foreign Investment Review Board and the purchasers were required to 'apply for the said consent within twenty four (24) hours of the date of [the] contract.' The court rejected an argument that the application for consent had to be made after the contract was entered into. McLelland CJ in Eq found that 'within' meant 'no later than'. His Honour considered there was no sensible reason why the parties would have wanted to exclude an application which had been made prior to the contract, since their evident intention was to have the application made as soon as possible. His Honour also observed that the 24 hours would have run from midnight on a Friday to midnight on the following Saturday when the Foreign Investment Review Board would have been unlikely to have been open to receive an application. That too indicated that the words were not intended to bear the construction contended for.

43 In the present case, the relevant provisions of the Act are not only in different terms but they are concerned with a quite different issue to those cases; namely, to deter actions for damages being brought in respect of workplace accidents where the claim is below the statutory threshold. Once it is established that the threshold has been satisfied and an election to retain the right to seek damages registered, s 93K(4)(c) then requires any action for damages to be instituted promptly.

44 If the respondent's argument were to be accepted it would mean that an action for damages could be commenced long before it was established that the statutory threshold was satisfied, so long as the action did not proceed to judgment before the requirements of s 93K(4)(a) and (b) had been fulfilled. In light of the legislative purpose, that cannot, in my view, have been intended. It could not have been intended by the legislature that a worker might commence proceedings in the hope or expectation that the statutory threshold would be met and the requirements of s 93K(4)(a) and (b) fulfilled so that the ability to obtain relief by an award of damages would arise before judgment in the action. On the contrary, speculative litigation of such a nature seems to me the complete antithesis of what was contemplated by the legislature. It is not, in my opinion, an answer to say that an employer might (inevitably at some cost) be able to obtain an order staying such an action pending notice by the Director of registration of an election by the worker.

45 Nor, in my view, is it to the point that in a particular case the limitation period for an action for damages might run out before the requirements of s 93K(4) have been fulfilled. That is simply the balance that has been struck by the legislature. And as was pointed out in Thomas Peacock, having regard to the regime set out in the Act such a case should be rare [34]. The time limits under the Act by which the necessary steps are to be taken envisage that ordinarily the process will not be unduly prolonged. In that context, the delay which has occurred in this case in the resolution of the issue of the appellant's liability to pay workers' compensation is extraordinary.

46 I do not consider that anything said in Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152 [30] - [31] or Jeans West Corporation Pty Ltd v Archer [2004] WASCA 132 [16] is inconsistent with the view I have reached. In those cases, the court concluded that the legislature had not sought to prevent actions for damages being instituted before it was determined that the statutory threshold had been reached and an election made. However, the provisions in question in those cases were in quite different terms to those applicable in this case. The view that was taken in those cases cannot be applied to the different language of the Act as it now stands.

47 In my opinion, the primary judge was correct to find, although not for the reasons he gave, that the effect of s 93K(4)(c)(i) was that damages

could only be awarded if proceedings were commenced within the 30 day period immediately following notice by the Director that an election to retain the right to seek damages had been registered.

48 However, I consider, with respect, that his Honour was in error in concluding that a failure to comply with s 93K(4)(c)(i) could be cured by a nunc pro tunc order. It is well established that, in general, where a statute contains a procedural restraint to prevent proceedings being commenced without leave, if proceedings have been commenced without leave such leave may be granted nunc pro tunc, thereby validating the proceedings retrospectively. That has no application in this case. No question of leave to commence proceedings for damages arises under the relevant provisions of the Act.

49 In both Re Monger; Ex parte Cross [2004] WASCA 176 and Transfield Pty Ltd v Rawstron [2005] WASCA 78, which were relied on by the respondent, the court referred to the power of the court to make a nunc pro tunc order in circumstances where proceedings had been commenced without the necessary leave having been obtained. In my view, nothing said in those cases supports the proposition that such a power exists in the circumstances of this case.

50 What in truth seems to have been contemplated in the present case is that the court could make a declaration that the proceedings commenced by the respondent were deemed to have been commenced in accordance with s 93K(4)(c)(i). No authority was referred to in support of the court's power to make such a declaration and in my opinion the court has no power to do so.

51 I would grant leave to appeal and allow the appeal. If it is necessary to do so, I would grant an extension of time within which to appeal to 10 June 2013 and grant leave to appeal.

Compensation and Injury Management Act 1981

Compensation Reform Act 2004

ST JOHN OF GOD HEALTH CARE INC -v- AUSTIN [2014] WASCA 11 (14 January 2014)

At a glance

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Judgment (82 paragraphs)

ST JOHN OF GOD HEALTH CARE INC -v- AUSTIN [2014] WASCA 11 (14 January 2014)

Legislation Cited (5)

Cases Cited (4)