STRYKE CORPORATION PTY LIMITED v MISKOVIC

CATCHWORDS: PROCEDURE - Leave to amend proposed statement of claim under compulsory pre-trial process of s318 of Workplace Injury Management and Workers' Compensation Act 1998 (NSW) ("WIM") - Whether applicable to the leave sought where the amendment was to insert claim for liability for misleading conduct in relation to employment under s53B of the Trade Practices Act - Meaning of the expression "for work injury damages" incorporated in s318(1) and in particular whether a contravention of s53B covered by the words "caused by the negligence or other tort of the employer" - No necessity to consider constitutional question of consistency between s318 and s53B of the Trade Practice Act as s318 WIM not applicable - Otherwise no basis for appellate intervention in relation to exercise and of discretion to grant leave to amend.

Judiciary Act 1903 (Cth) s78A Trade Practices Act 1974 (Cth) s51A, s52, s53B, s82 LEGISLATION CITED: Uniform Civil Procedure Act s64 Workers Compensation Commission Rules 2003 (NSW) Rule 80(1) Workplace Injury Management & Workers Compensation Act 1998 s4, s250, s318

Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Esso Australia Limited v Victorian WorkCover Authority (2000) 1 VR 246 CASES CITED: Gibson v Parkes District Hospital and Another (1991) 26 NSWLR 9 Henville v Walker (2001) 206 CLR 459 Parkdale Custom-built Furniture Pty Ltd v Paxu Pty Ltd (1982) 149 CLR 191 Phillip Morris Limited v Ainley & Inc Nominal Defendant [1975] VR 345 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

STRYKE CORPORATION PTY LIMITED trading as KSS SECURITY (Appellant) PARTIES: Zoran MISKOVIC (Respondent) THE ATTORNEY GENERAL FOR NEW SOUTH WALES (Intervenor)

J MACONACHIE, QC/ F DOAK (Appellant) COUNSEL: T BATHURST, QC/ H KELLY, SC/ T McKENZIE (Respondent) I MESCHER/ B O'DONNELL (Intervenor)

Turks Legal (Appellant) SOLICITORS: Petrovich Accident Lawyers (Respondent) Crown Solicitor's Office (Intervenor)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40872/05 DC 3813/04

SPIGELMAN CJ HODGSON JA SANTOW JA

2 APRIL 2007 STRYKE CORPORATION PTY LIMITED v Zoran MISKOVIC Judgment 1 SPIGELMAN CJ: The facts, issues, statutory provisions and submissions are set out in the judgments of Hodgson JA and Santow JA which I have read in draft. 2 The focus of submissions on behalf of the Appellant was whether an action under s53B of the Trade Practices Act 1974 (Cth) ("TPA") was an action for a "tort" within the meaning of the definition of "work injury damages" in s250(1) of the Workplace Injury Management & Workers Compensation Act 1998 ("WIM"). 3 I agree with Santow JA and Hodgson JA that the phrase "negligence or other tort" does not extend to proceedings invoking s53B of the TPA. Whether or not the word "tort" extends to a statutory cause of action depends on the proper interpretation of the statute in which the word appears. (See my analysis in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at [69]-[78].) 4 In the present case, some form of extension of the usual meaning of "tort" may be suggested by the words "any other action", where appearing in the definition of work injury damages in the context of "whether the damages are recoverable in an action for tort or breach of contract". 5 Nevertheless, in that definition, the reference to "action" is, in my opinion, a reference to a "common law cause of action" and is not a reference to "action … to enforce a statutory right by a statutory cause of action". This was the distinction drawn by Menhennitt J in Phillip Morris Limited v Ainley & Inc Nominal Defendant [1975] VR 345 at 349, approved by the Court of Appeal of the Supreme Court of Victoria in Esso Australia Limited v Victorian WorkCover Authority (2000) 1 VR 246 esp at [27]-[28]. These authorities were relied upon in my judgment in Commissioner of Police v Estate of Russell supra at [72]-[74]. 6 This conclusion is reinforced by the definition of "injury", a word found in par (a) of the definition of "work injury damages", defined in s4 of the WIM Act in the traditional terms of: "A personal injury arising out of or in the course of employment". 7 Section 53B of the TPA expressly applies to the period prior to the entry into a contract of employment when it uses the formulation "in relation to employment that is to be, or may be, offered by the corporation". There is no overlap of any character with proceedings for "work injury damages" which are confined to an injury "arising out of or in the course of employment". 8 Accordingly I agree that no constitutional issue arises. 9 I agree with the orders proposed by Santow JA. 10 HODGSON JA: The circumstances of this appeal and the issues it involves are set out in the judgment of Santow JA. I agree with the orders he proposes and, except as indicated below, with his reasons. 11 The critical issue is whether the claim sought to be brought by the respondent seeking damages for breach of s.53B of the Trade Practices Act 1974 (Cth) (TPA) is "a claim for work injury damages" within the meaning of s.318 of the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) (WIM). The following definition of "work injury damages" is contained in s.250 of WIM: work injury damages means damages recoverable from a worker's employer in respect of: (a) an injury to the worker caused by the negligence or other tort of the employer, or (b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer, whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages. 12 The cause of action sought to be brought is an action for damages under s.82 of the TPA, which provides for recovery, by "a person who suffers loss or damage by conduct of another person that was done in contravention of" provisions including s.53B, of that loss or damage. Section 51A of TPA bears on the effect of s.53B in this case. Those sections are as follows: 51A Interpretation (1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading. (2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation. (3) Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.

53B Misleading conduct in relation to employment A corporation shall not, in relation to employment that is to be, or may be, offered by the corporation or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment. 13 The relevant pleading sought to be introduced was as follows: 11 CLAIM UNDER THE TRADE PRACTICES ACT (Cth) (i) Further, or in the alternative, the Defendant was a corporation that engaged in conduct which was the (sic) liable to mislead the Plaintiff, who was seeking employment, as to the nature, terms and conditions of employment and other relevant matters relating to that employment. (ii) The Plaintiff who acted in reliance of the Defendant's conduct was misled as to the nature, terms and conditions of the employment and the Defendant was therefore in breach of s.53B of the Trade Practices Act (Cth) ("TPA"). (iii) Pursuant to s.82 of the TPA the Plaintiff claims damages for the Defendant's breach of s.53B alleged above. Particulars of Breach (a) The Plaintiff at all material times prior to commencing employment with the Defendant was informed that his employment with the Defendant would be safe and that he would be assisted by other competent employers and that he would be given sufficient time to complete his duties. These representations were false and misleading. (b) The Plaintiff was at all material times prior to commencing employment informed that he would have assistance and back-up at all relevant times to safely and efficiently carry out his duties. These representations were false and misleading. (c) The Plaintiff was never informed he would be working alone and on foot to carry out supervision of up to 15 high-rise buildings. This omission was misleading. (d) The Plaintiff was not informed prior to commencement of employment that his hours would be dramatically increased from 8 hours a night for 5 days straight to 10 hours per night for 10 days straight. This omission was misleading. (e) The Plaintiff was informed he would be given adequate training and induction to perform his duties safely and efficiently. This representation was false and misleading. (f) The Plaintiff was informed that he was to perform a job which was without risk. In fact the patrol was a new patrol and had not been performed by any worker before in the allotted time or manner. This representation was false and misleading. (g) The Plaintiff was assured he would operate within a safe system of work with adequate equipment, training and supervision with adequate time to safely and competently carry out his duties in an environment where dangers existed of possible violence, crime, theft or mechanical breakdown or property damage. These representation (sic) were false and misleading. 14 I agree with Santow JA that the proposed action under TPA is not within the words "other tort" in par.(a) of the definition of "work injury damages"; but for my part I do not think that is the end of the matter. 15 Particular (g) of the Particulars in the proposed pleading alleges a representation to the effect that the appellant would provide a safe system of work; and to the extent that the respondent's case under this Particular depends on the proof of the appellant's failure to provide a safe system of work, it could be arguable that the respondent's claim is for damages recoverable in respect of injury caused by the employer's negligence (failure to provide a safe system of work), albeit that the damages are sought in "any other action" within the latter part of the definition of work injury damages, namely an action under TPA. 16 However, on balance I do not think that argument should prevail, for the following reasons: 1. The question is whether the claim is one for work injury damages, and it arises for determination at the time the claim is brought, not when it has been resolved; so the question must turn on what is claimed, not what is ultimately proved. 2. The gist of the TPA claim is a representation as to future circumstances without reasonable grounds; and the damages are those caused by the making of the representation. 3. That does not mean that the damages may not also be caused by the employer's negligence; but subject to what I say below, this is not an element of the cause of action or even a necessary element in causation of loss. 4. I accept that generally damages claimed in a TPA action such as this would have to relate to the respect in which the representation turned out to be inaccurate; because otherwise, even though s.53B is breached if the representation as to the future is made without reasonable grounds, it cannot be said that loss or damage is suffered "by" the conduct within s.82 unless what actually happened was different from what was represented. 5. In relation to the particulars of breach in this case, at least apart from the last, it is not an element of the difference between what happened and what was represented that the employer acted negligently: it may be that this would be the case as a matter of fact, but it is not an element of what is actually alleged; and so it is not part of the respondent's claim that his injury was caused by the employer's negligence. 6. As regards the last particular, an allegation to the effect that the employer did not provide a safe system of work is close to the standard allegation of negligence against an employer, although fully stated the negligence of an employer consists in the employer and others for whose conduct the employer is responsible not acting with reasonable skill and care in relation to providing a safe system of work; and the fact that the allegation in the particulars is in absolute terms means that, even in relation to this particular, departure from what was represented does not necessarily involve negligence by the employer. 17 It follows that in this case, the claim actually made is not to the effect that the injury was caused by the employer's negligence or other tort, and so it is not within s.318. Accordingly, the Constitutional question does not arise. 18 My reasoning differs from that of Santow JA in that it leaves open the possibility that if, in another case, a claim by a worker is to the effect that the employer represented that it would exercise reasonable skill and care, that this was misleading, and that the worker was injured because it turned out that the employer did not exercise reasonable skill and care, as represented, this could possibly be a claim for work injury damages. That view would raise the Constitutional question in such a case. It is not necessary in this case to decide whether that view is correct, or to consider the Constitutional question. 19 SANTOW JA: INTRODUCTION This appeal seeks to overturn leave granted in the District Court, purportedly under s318 of Workplace Injury Management and Workers Compensation Act 1998 (NSW) (" WIM "), to amend the respondent's (plaintiff's) earlier proposed Statement of Claim suing for alleged employer negligence. Leave was given to add a count under federal legislation, namely s53B of the Trade Practices Act 1974 (Cth) (" TPA ") seeking damages under s82 TPA . Section 318 is part of a statutory scheme under WIM for a compulsory pre-trial process. It requires the employee to submit to the employer the former's proposed statement of claim and constrains subsequent amendment to that statement of claim without leave. 20 Section 53B, speaking generally, imposes liability for misleading conduct in relation to employment. There is a primary question of construction upon which this appeal turns. If it is answered in the negative, the appeal must fail and there is then no need to answer a further series of constitutional questions. The primary question is whether, under that statutory pre-trial process of s318 WIM, such leave to amend to add the TPA count was required at all, given the nature of the claim under the TPA as a statutory rather than a conventional common law tort claim. 21 If however the answer to that question is in the affirmative, then and only then do these further constitutional questions arise. First: whether s318 WIM is inconsistent with ss53B and 82 TPA and so as to be invalid under s109 of the Constitution to the extent of that inconsistency, and Second: whether the provisions of s318 WIM are, in any event, picked up as a surrogate federal law by s79 of the Judiciary Act 1903 (Cth). 22 If s318 WIM (a) were applicable as a matter of construction to the leave application in relation to adding the s53B count, (b) constitutionally valid, and (c) picked up as a surrogate federal law, then it is accepted that the appellant must succeed, taking into account the way the leave application was actually dealt with. 23 The Attorney-General of New South Wales appeared as an intervenor pursuant to s78A of the Judiciary Act 1903 (Cth) in relation to the above constitutional issues.

SALIENT FACTS 24 The salient facts are not in contention and are taken substantially from the appellant's written submissions. The statutory provisions there referred to are set out next under the heading "Relevant Statutory Provisions". 25 The respondent was the plaintiff at trial, Zoran Miskovic. He alleges that from about 19 July 1999 to May 2002 he was required to patrol an excessive amount of premises as a security officer, so suffering "work injury damages" under WIM; para 5 of the Amended Ordinary Statement of Claim (Red, 43O-Q). The orders, the subject of this appeal, described below were subsequently made by the primary judge, McLoughlin, SC, DCJ, on 31 October 2005. 26 The respondent commenced by delivering, as required by WIM, a pre-filing statement index. This he did on 30 June 2004. That index referred to and accompanied documents numbered 1 to 7 said to be in accordance with the provisions of Part 6 Division 3 - Pre-Filing Statements, of WIM and in particular s315. These included the proposed statement of claim. 27 On 29 July 2004, the respondent's employer, Stryke Corporation Pty Limited, appellant in these proceedings, responded to the pre-filing statement (Red, 10) in accordance with WIM; see s.316. 28 On 8 September 2004, the respondent commenced proceedings in the District Court of New South Wales by filing an ordinary statement of claim (Red, 13) which: (a) alleged that the defendant was liable to the plaintiff for breach of the duty of care owed by an employer to employee (paras 4 to 7 Red, 15J-V); (b) was, according to the appellant's submissions, court proceedings on a claim for "work injury damages" which engaged s318(1) WIM ("work injury damages" is defined in s4(1) of WIM by reference to s250(1) and (2) of WIM); (c) was not materially different from the proposed statement of claim (Red, 4) that formed part of the pre-filing statement (Red, 1) (see WIM s318(1)). 29 The statement of claim sought damages for personal injuries of a psychiatric kind (Red, 16S -18G ). 30 On 28 September 2004, the appellant filed a defence (Red, 26) denying breach, causatively relevant loss and alleging contributory negligence. 31 The matter was fixed for hearing before the District Court of New South Wales and allocated Monday, 31 October 2005, for the commencement of the hearing. 32 It was listed for hearing on that day before the primary judge. 33 At approximately 10 am on that day, the respondent informed the appellant of an intention to move to amend his statement of claim in three respects (Red, 28): (a) to add a count in contract (para 12 at Red, 33N - S); (b) to add a count for breach of fiduciary duty (para 13 at Red, 33T -X); (c) to add a claim for damages pursuant to s82 TPA based on an alleged breach of s53B of the TPA (para 11 at Red, 32D-33L) Amendments (a) and (b) were effectively abandoned (Black, 15N-Y). 34 The respondent gave no notice of the application to the appellant before approximately 10 am on the first day the matter was listed for hearing (Black, 2P). 35 The primary judge granted leave to the respondent to amend the statement of claim (Red, 39X-40D) in accordance with para 11 of the amended statement of claim (Red, 46C-47K), and made consequential orders including an order vacating the hearing date (Red, 40K) and with respect to costs (Red, 40L-O). 36 The following submissions were advanced by the appellant against the application for leave to amend (Black, 3Y-14R) which was made nonetheless: (a) Section 318 applied notwithstanding that the cause of action, the subject of the application for amendment, arose under a Commonwealth Act; (b) no evidence was put on to support the application and in particular: (i) no evidence explaining delay and in particular the giving of notice as late as 10 am on the first day for hearing; (ii) no evidence demonstrating in terms of s53B TPA that the respondent could establish a prima facie case, that is to say: (aa) the defendant engaged in conduct; (bb) that conduct was in relation to employment that was to be, or may be, offered to the respondent; (cc) being conduct that was liable to mislead people seeking the employment; (dd) that it was conduct so liable to mislead as to the availability, nature, terms or condition of, or other matter relating to, the employment; (ee) reliance on, or any other causal connection between, any such conduct and the claimed damage; (iii) no evidence to explain what the appellant describes as the inconsistency between the negligence count (alleging damage caused by acts or omissions during employment) and the TPA count sought to be added (alleging the same damage caused by conduct before the contract of employment was entered into); (c) accordingly, there was no proper basis upon which, in the exercise of a discretion required to be judicially exercised, the leave sought and required by s318(2) and similar but different provisions of the Uniform Civil Procedure Act (" UCP ") (under s64) could be granted. Those submissions were repeated on the appeal. 37 Leave to appeal was granted on 25 September 2006 (Red, 65). It was ordered that the costs of the leave application be costs in the appeal (Red, 65K-L).

Statutory Provisions 38 Sections 315 to 317 WIM require a pre-filing statement before commencing court proceedings (s315) and the defendant's required response by the prescribed time to the pre-filing statement (s316). Provision is also made for a defective pre-filing statement (s317). 39 Section 318 is as follows: "318 Parties limited to pre-filing statement and defence

(1) For the purposes of court proceedings on a claim for work injury damages: (a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and

(b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant's pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and

(c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and

(d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party's behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.

(2) The court is not to grant leave under this section unless satisfied that: (a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b) the failure to grant leave would substantially prejudice the party's case.

(3) The regulations may provide for exceptions to this section." 40 "Work injury damages" is defined in s250 of WIM as follows (omitting the note appended to the definition): " work injury damages means damages recoverable from a worker's employer in respect of:

(a) an injury to the worker caused by the negligence or other tort of the employer, or

(b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,

whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages. (2) In the definition of work injury damages in subsection (1), a reference to a worker's employer includes a reference to: (a) a person who is vicariously liable for the acts of the employer, and

(b) a person for whose acts the employer is vicariously liable.

(3) A claim served on an insurer in accordance with the WorkCover Guidelines or forwarded to an insurer by the employer is taken to have been made on the insurer (and to have been so made when it was made on the employer)".

41 Section 53B TPA is in the following terms: " 53B Misleading conduct in relation to employment A corporation shall not, in relation to employment that is to be, or may be, offered by the corporation or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment." 42 Actions for damages for breach, inter alia, of s53B TPA are brought under s82 TPA whilst other orders are obtained under s87 TPA. 43 Rule 80(1) of the Workers Compensation Commission Rules 2003 (NSW) provides that a pre-filing statement is to consist, inter alia, of a copy of the statement of claim intended to be filed in the court of relevant jurisdiction. 44 The term "claim" is defined in s4(1) WIM as meaning "a claim for compensation of work injury damages that a person has made or is entitled to make", with "claimant" having a corresponding meaning of a person "who makes or is entitled to make a claim".

DISPOSITION 45 In the appellant's written submissions (paras 26 to 34), the appellant submits that, once an action includes a claim for "work injury damages" within the meaning of the statutory definition, s318 WIM applies to all parts of the proceedings, even those unrelated to "work injury damages". It is then submitted that since the statement of claim as originally filed, derived from that proposed in the pre-filing statement, was indubitably a claim for "work injury damages", it necessarily engaged s318(1) of WIM for all subsequent purposes. That, it was said, had its consequence that s318 remained engaged when it came to the amendment to the statement of claim which introduced the s53B/s82 TPA claim, it being within the definition of "work injury damages". Indeed as I understand the appellant's argument this consequence would follow even if that further claim was not within the definition of "work injury damages". 46 One consequence of the appellant's construction, if correct, would be that s318 would apply even if a plaintiff were to have had causes action wholly unrelated to workplace injury in a suit, merely because that suit began with causes of action that were related to workplace injury or included such causes of action. An example of this would be an action that sought both damages for negligence for an injury at work and unpaid wages due to a miscalculation of severance pay. 47 Another consequence of such an application of s318 WIM would be to discourage plaintiffs from seeking to amend existing proceedings so as to bring all actions against an employer in the one proceedings. Instead it would allow, even encourage, plaintiffs to bring two separate proceedings able to be heard concurrently with precisely the same result. This would be inconsistent with the laws' longstanding policy against multiplicity of actions. This lies at the heart of the power of amendment; see s64(2) Civil Procedure Act 2005 (NSW) which relevantly provides that all necessary amendments are to be made for the purpose of avoiding multiplicity of proceedings. 48 I agree with the Attorney General's submission that it is inherently unlikely that Parliament would have intended to undermine such a central policy goal in this way. 49 That policy and the reasons elaborated below support a construction of s318(1)(a) whereby the prohibition on the claimant of filing "a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement", is to be interpreted as referring only to differences that are material to the claim for "work injury damages". This, as I explain below, directs attention to that statutory definition. 50 Support for this is to be found in the opening words of s318(1), namely, "[F]or the purposes of court proceedings on a claim for work injury damages" [emphasis added]. 51 That requirement strongly militates against the notion that some count, extraneous to "work injury damages", as defined, could not permissibly be introduced by way of amendment to the earlier proposed statement of claim. 52 The question therefore becomes whether an action under s82 TPA for breach of s53B TPA is an action for damages in respect of "an injury to the worker caused by the negligence or other tort of the employer" within the definition of "work injury damages" quoted earlier, or otherwise caught by its concluding words. 53 Section 53B TPA is predicated upon prospective employment rather than employment that has already commenced. It thus refers to employment "that is to be, or may be, offered by the [employer] corporation or by another person". The prohibition in s53B is against engaging "in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment". 54 An examination of the actual amendments sought to be made to the statement of claim indicates that the claim is directed to alleged conduct on the part of the prospective employer as to "the nature terms and conditions of the employment". Its particularisation is based upon alleged lack of safety and lack of assistance to the respondent in so supervising a large number of high-rise buildings. The claim was based upon alleged representations, express or implied, as to the assistance and back-up the respondent would receive in that task and as to his failing to be informed that he would be working alone and on foot to carry out supervision of up to 15 high-rise buildings; see para 11 under the heading "Claim under the Trade Practices Act (Cth)" (Red, 32). 55 The subsequent damage claimed clearly arose when the respondent commenced employment. It is described in the alleged statement of claim as simply "damages pursuant to the Trade Practices Act (Cth)". 56 The nature of the injury that the respondent claims to have suffered is apparently psychiatric and arose from what is described in both amended and non-amended statement of claim at paragraph 6 as follows: "6. By December 2000 the Plaintiff was inspecting 15 buildings, 10 nights in a row with 4 nights off from 6.00pm to 5.30 am without a break, unassisted and at significant speed which caused the Plaintiff to suffer from significant emotional stress and eventually the Plaintiff contracted major depression on or about May 2002 and, accordingly sustained substantial injury, loss and damage." 57 It is clear from the earlier paragraph 5 that the complaint was that "the Plaintiff was required to patrol an excessive amount of premises as a security officer … without proper breaks and assistance." 58 This poses a preliminary question of causation. Could injury arising from pre-existing conduct prior to the employment commencing, be said to be "caused" by the employer? I consider that to be an open question, notwithstanding the definition of "injury" in s4 WIM as meaning "a personal injury arising out of or in the course of employment". I shall however assume for present purposes that such an injury is capable of satisfying the causation requirement of the definition of "work injury damages". The ultimate question is therefore whether, on that assumption, damage by reason of a contravention of s53B is capable of being encompassed by the words "caused by the negligence or other tort of the employer". 59 I do not consider that the slight variation in wording in s52 TPA in its reference to "engage in conduct that is misleading or deceptive or is likely to mislead or deceive", as against s53B "engage in conduct that is liable to mislead", affects the basic proposition stated below. That proposition is that the concept of misleading conduct, in either section, does not have as an essential element any notion of failure to take reasonable care, so far as the defendant is concerned. Failure to take reasonable care has never been an element of the cause of action under s52 TPA as Gibbs CJ confirmed in Parkdale Custom-built Furniture Pty Ltd v Paxu Pty Ltd (1982) 149 CLR 191 at 197. Conduct will, and will only, be misleading or deceptive if it induces or is capable of inducing error. Here, that error alleged by the amendment pleaded and by reference s53B is "as to … the nature, terms or conditions of … the employment"; compare Parkdale Custom-built Furniture Pty Ltd v Paxu Pty Ltd (supra) at 198. That therefore a defendant may have acted honestly and reasonably and taken all reasonable care will not constitute a defence if there was conduct which induced or was capable of inducing error, subject to proving damage. 60 Given therefore that the s53B claim is not to be characterised as one in negligence, in order for the appellant to succeed it must show that the TPA claim here brought constituted a claim that fell within the words "or other tort". I put to one side whether the concluding words in the definition of "work injury damages" gives any wider ambit than the opening expression "negligence or other tort". 61 In that definition the expression "other tort" is used in contradistinction to the tort of negligence. That opens this category to encompass any common law tort such as trespass. It may likewise encompass civil liability, which may arise from breach of a statutory duty. 62 Here, however, the s53B statutory obligation does not bear the distinctive or common characteristics of tort law. I have already indicated that there is no requirement for lack of due care. Liability under both s52 and s53B is moreover essentially strict. There is no requirement that the defendant intend that the conduct be misleading or deceptive. And awards of damages under s52 for breach of s52 and equally s53B would not necessarily be constrained by principles relating to awards of damages in contract and tort. 63 While therefore s82 may draw upon the common law's recognition of the concept of remoteness (see, for example, Henville v Walker (2001) 206 CLR 459 at [136] per McHugh J) it should be remembered that s82 contains no stated limitation on the kinds of loss or damage that may be recovered under the section. The wide language of the section is compatible with the legislation's desire to broaden the scope of recovery, not to keep it strictly within the bounds of some comparison with the common law. Thus the court said in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525: "It would not be right to conclude that the measure of damages recoverable under [s82(1)] necessarily coincides with the measure of damages applicable in an action for deceit or in an action for negligent misrepresentation. The measure of damages recoverable under s82(1) can only be ascertained after a thorough analysis of those provisions in Part IV and V of the Act for the contravention of which the statutory causes of action may be maintained." 64 Similarly, comparing s52 with damages for negligence, it is as yet unsettled as to whether there is any difference in outcome. In Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209, a case involving alleged negligent advice by a barrister and a firm of solicitors which included a s52 claim, Gaudron J said: "Moreover, the damages recoverable for breach of s52 of the Act are not necessarily co-extensive with those recoverable in negligence. In particular, damages are confined to actual loss and, thus, do not include punitive damages. Further, it is possible that they are not limited either by the foreseeability of consequential damage or remoteness. And significantly for present purposes, if s52 had applied in this case, there would be no occasion to consider whether the appellants were "immune from suit". The question could only arise if it were found that the appellants were negligent but that s52 did not apply to their conduct." 65 I conclude that the expression "other tort" does not encompass the statutory right to sue for damages, such as that found in s53B of TPA. I consider that expression is apt rather to cover any common law action other than in contract. That interpretation finds further support in the immediately preceding reference to "negligence" as implying a genus sharing the characteristics of a common law action. 66 Turning to the reference in the concluding part of the definition of "work injury damages" to damages recoverable "in an action for tort or breach of contract or in any other action" this to my mind is a reference to what preceded. It does not expand the cause of action from that of a common law tort to a statutory one despite the reference to "any other action". Rather the broad reference to "tort, breach of contract or any other action" reinforced the genus of a common law claim. The expression "any other action" might conceivably extend to some innominate tort, such as was suggested by Badgery-Parker J as not "entirely untenable", derived from an insurer's obligation to act in good faith; see Gibson v Parkes District Hospital and Another (1991) 26 NSWLR 9 at 36. But it is not necessary to define the precise limits of the expression beyond concluding that it does not extend to a TPA action. 67 Further support for this conclusion can be found in the definition of "damages" which appears earlier in s250(1) which is said to have "the same meaning as in Part 5 (Common Law Remedies) of the 1987 Act". 68 Finally, the reference in s250(2) by way of elaboration of the definition of "work injury damages" is to include "a person who is vicariously liable for the acts of the employer" and "a person for whose acts the employer is vicariously liable" [emphasis added]. This may have some significance. Let it be supposed that statutory claims could be brought within the definition of "work injury damages". Nonetheless any claim under s52 or s53B of TPA, though a statutory claim, is not based upon identification of particular "acts" so much as "conduct". Conduct may be misleading though there be no acts; for example an implied representation. Nor does the notion of vicarious liability fit readily in the statutory scheme of the Trade Practices Act. 69 I should now deal with the related ground of appeal; that there was no proper basis upon which, in the exercise of a discretion required to be judicially exercised, leave should have been given under s64 UCP. 70 First, it is clear that s318 placed no impediment in the grant of leave to amend, as leave was not required under that provision; see earlier. 71 Second, though there was no formal evidence explaining delay and the giving of late notice to amend on the first day of hearing, the primary judge, in what was a matter of practice and procedure with no statutory impediment, observed (Red, 37): "There is no evidence put on to support the application but it is said from the bar table and I think accepted, that these are matters which were just overlooked, not recognised in the preparation of the plaintiff's claim until Mr Kelly of senior counsel and Mr McKenzie, counsel conferred with the plaintiff as recently as last Thursday." 72 Then having satisfied himself that there was an arguable case for the potential application of s53B, TPA, the primary judge was satisfied: "there would appear to be no prejudice that flows to the defendant by granting the amendment. That there is no suggestion that the claim if it is one that can brought could be commenced by fresh proceedings started together in either this court or other courts. There is no need for the leave of the court for commencement of proceeding when the cause of action arise within six years of this date. Accordingly I am of the view that that should not be an impediment to the leave being granted to the plaintiff as sought." 73 Third, the primary judge required the plaintiff to pay the defendant's costs on an indemnity basis and then, by reference (as s58 UCP provides) to "the dictates of justice" concluded that: "justice is done by granting the amendment to the plaintiff in relation to paragraph 11 of the proposed amended statement of claim, … and reserving to the defendant the right to make application to strike out these amendments which I have ordered should on the matter being fully particularised and the issues clarified between the parties, form a view that the six year time limit is one which is applicable." 74 To my mind there is no basis for appellate intervention in this exercise of discretion to allow the amendments, so permitting the true matters in dispute to be determined in the one proceeding. 75 Finally, I have had the advantage of reading in draft the judgment of the Chief Justice and agree with his further observations.

Conclusion 76 I consider that the answer to the question of statutory construction is that s318 has no application to a claim based upon s53B TPA. Leave was therefore never required under s318 to the amendment in question in order to add such a claim. Nor is there any basis for appellate intervention in relation to the grant of leave to amend under s64 UCP. Accordingly the challenge to the leave granted, and to its outcome, must fail. It is not necessary to consider the further constitutional questions, which therefore I refrain from answering.

OVERALL CONCLUSION 77 I consider that this appeal should be dismissed with costs and propose the following orders: (1) Appeal dismissed. (2) Appellant to pay the respondent's costs. **********

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