Interpretation Act 1984, s 37

Workers' Compensation and Rehabilitation Act 1981, s 93D(4)

Workers' Compensation and Rehabilitation Act 1999, s 32(7)

Azevedo v Secretary, Department of Primary Industries & Energy [1992] FCA 84; (1992) 106 ALR 683

Baker v Albany Shire Council (1994) 14 WAR 46

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

Deposit & Investment Co Ltd v Greenaway [1969] VicRp 92; [1969] VR 714

Director of Public Works v Ho Po Sang [1961] AC 901

Donovan v Repatriation Commission [1985] FCA 52; (1985) 58 ALR 634

Griffin Coalmining Co Pty Ltd v Smith [2000] WASCA 366

Houssein v Under Secretary for Department of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 38 ALR 577

Jumbunna Coal MIne v Victorian Coalminers' Association (1908) 6 CLR 309

Landsal Pty Ltd v REI Building Society [1993] FCA 121; (1993) 41 FCR 421

Madsen v Western Interstate Pty Ltd (1966) Qd R 163

National Mutual Fire Ins Co Ltd v Commonwealth [1981] 1 NSWLR 400

Nelson v Trevlyn Pty Ltd, unreported; FCt SCt of WA; Library No 970680; 8 December 1997

NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685

O'Brien v Gillies [1990] NTSC 22; (1990) 69 NTR 1

Olsen v McMahon Construction, unreported; DCt of WA; 20 November 1994

Pilbara Iron Ore Ltd v Bonotto (1994) 11 WAR 348

Pirelli General Cableworks Ltd v Oscar Faber & Partners [1983] 2 AC 1

Resort Management Services Ltd v Noosa Shire Council [1996] QCA 441; [1997] 2 Qd R 291

Ross v Hvric [1963] HCA 13; (1962) 108 CLR 353

Seltsam Pty Ltd v McGuinness & Ors [2000] NSWCA 29; (2000) 49 NSWLR 262

Stanko v Canning City Council (1992) 7 WAR 542

Taylor v Attorney General [1975] 2 NZLR 675

Wentworth v (NSW) Bar Association [1992] HCA 24; (1992) 176 CLR 239

Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

1 ANDERSON J: I have had the advantage of reading in draft the reasons to be published by the Hon Scott J. I entirely agree with those reasons and have nothing to add.

2 SCOTT J: These two appeals were argued together because they raise the same issue. There are marginal differences between the position of the appellant in FUL 102 of 2000 Bradley John Dossett ("Dossett") and the appellant in FUL 44 of 2000 Alan Templeton ("Templeton") insofar as dates are concerned but substantially there is no distinction between the material facts concerning each of the appellants.

3 Templeton, the appellant in FUL 44 of 2000 claimed to have been injured in an accident at work on 26 November 1996. On 22 June 1999, he took out an originating summons seeking leave to proceed pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 (the "Workers' Compensation Act"). On the 6 July 1999, he filed a notice of appointment to have the originating summons heard. The initial return date of the summons was 4 August 1999 but it was adjourned to 2 September 1999 for the defendant to file affidavits. On 13 September 1999, Templeton requested the District Court to have the matter listed for a special appointment. It was listed for hearing on 21 October 1999 before a Deputy Registrar of the District Court who subsequently dismissed the summons. Templeton then appealed to a single judge of the District Court and that appeal was dismissed on 8 February 2000. On 17 March 2000, he was granted leave to appeal to the Full Court.

4 The chronology in relation to FUL 102 of 2000 concerning the appellant Dossett is that Dossett was injured in December 1996 and applied to the District Court for leave to proceed on 1 July 1998. The originating summons was listed for hearing before a Registrar on 8 October 1999 and the hearing was adjourned to a special appointment before a Registrar. The hearing date before the Registrar was vacated by consent and re-listed in Chambers before a Commissioner of the District Court on 19 January 2000. The originating summons was dismissed.

5 The applications for leave to proceed brought by each appellant were brought under the provisions of s 93D(4) of the Workers Compensation Act. That section was repealed on 5 October 1999 but prior to repeal provided:

"93D ...

(4) Proceedings in which damages are sought are not to be commenced without leave of the District Court."

"The amended provisions do not affect the awarding of damages in proceedings-

(a) commenced before the assent day; or

(b) for the commencement of which the District Court gave leave under the former provisions before the assent day,

and the former provisions continue to apply in relation to those proceedings."

7 The assent day was defined as being the date upon which the amendment Act received the Royal assent, which was 5 October 1999.

8 As can be seen in relation to each of these appeals, leave was not obtained from the District Court to commence proceedings under s 93D(4) prior to its repeal on 5 October 1999.

9 Transitional provisions were included in Act No 34 of 1999, the Workers' Compensation and Rehabilitation Amendment Act 1999, which repealed s 93D(4) of the Workers Compensation and Rehabilitation Act 1981. Section 32(7) of the Workers' Compensation and Rehabilitation Amendment Act 1999 provided:

"32(7) The amended provisions do not affect the awarding of damages in proceedings -

(a) commenced before the assent day; or

(b) for the commencement of which the District Court gave leave under the former provisions before the assent day, and the former provisions continue to apply in relation to those proceedings."

10 The other provision that falls for consideration in these proceedings is s 37 of the Interpretation Act 1984, which provides:

(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -

(a) revive anything not in force or existing at the time at which the repeal takes effect;

(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;

(d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;

(e) subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;

(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,

and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.

(2) The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."

11 In Musgrove v Minister for Transport [2000] WASCA 232 the Full Court, comprising Kennedy, Ipp and Wallwork JJ had occasion to consider a similar problem. The factual difference between Musgrove's case and the two cases presently under consideration is that in Musgrove's case leave to commence proceedings had been refused by a District Court Judge on 9 July 1999, that is, before the coming into operation of the amendment Act on 5 October 1999. The Full Court (Ipp and Wallwork JJ, Kennedy J dissenting) held that the learned District Court Judge was in error in dismissing the application for leave to proceed and overturned the Judge's decision in that regard. Having held that the leave to proceed was wrongly refused, and notwithstanding the fact that the Full Court decision was delivered on 28 August 2000, the court, in allowing the appeal, ordered that the appellant should be given leave to proceed with the action.

12 In that judgment, Ipp J agreed with the reasons of Wallwork J and said at:

"[10] The appellant unsuccessfully sought leave in the District Court under s 93D(4) of the Workers' Compensation and Rehabilitation Act, prior to its amendment by Act No 34 of 1999, to commence proceedings for damages for personal injuries. Under that section, the District Court was empowered to give leave to commence proceedings upon it determining, amongst other things, 'that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount'. The learned District Court Judge held, wrongly, in my view (for the reasons set out by Wallwork J), that the appellant had not satisfied her that he was likely to have future pecuniary loss of the requisite amount."

"[13] Counsel for the respondent proceeded to argue that an order of this Court, varying the decision of the learned District Court Judge and purporting to grant leave under the repealed s 93D, would have no effect as such an order was made after the assent day. It was submitted that s 32(7) precludes the awarding of damages in proceedings commenced after the assent day and, as a matter of fact, the District Court did not give leave for the commencement of proceedings under the former provisions before the assent day.

[14] Counsel rightly accepted that on the construction so advanced, an error on the part of the District Court Judge - in regard to an application for leave timeously made - might result in a claimant losing his or her right to claim damages. On this basis, the amending statute would deprive an appellant of the right to appeal against an erroneous decision of the District Court: an unfair consequence indeed. In my view, if the Act is to be so construed, the intention of Parliament to that effect would have to be very clear."

14 In Musgrove's case, as I have indicated, Kennedy J dissented and held:

"[6] Although I accept that a judgment of this Court overturning a decision of the District Court refusing leave to bring an action will result in an order of the District Court granting leave within the terms of s 32(7) of the Amendment Act, in my view, it cannot be said that the decision of the Full Court operates retrospectively so that leave is deemed to have been granted by the District Court on the date when it in fact refused leave. It may well be claimed that this does not do justice to both the affected parties, but it is, in my view, the result of the legislation. The relevant leave not having been granted prior to the date of assent, it follows, in my opinion, that the 'amended provisions' do 'affect the award of damages in [the] proceedings'."

16 In Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131, a bench of five Justices; Malcolm CJ, Pidgeon, Owen, Parker and Wheeler JJ had occasion to consider a similar matter to that under consideration in Musgrove. In that case the appeal was from a District Court Judge who, on 20 May 1999 refused the appellant leave to commence proceedings to recover damages at common law for personal injury. That refusal occurred prior to 5 October 1999 and therefore prior to the coming into operation of the amending Act. In that respect the case was similar to the matter under consideration in Musgrove. In Toolan, however, the appellant had also lodged an appeal prior to 5 October 1999.

17 In Toolan, the appellant asked the Full Court to reconsider the decision in Musgrove and for that reason a bench of five was constituted. In his judgment, Parker J, with whom Malcolm CJ, Pidgeon and Owen JJ agreed, cited a passage from Ebser v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440-441 and noted the similarities between that case and this. Parker J said at [55-56]:

"It is not enough to attract the operation of s 37(1)(c) of the Interpretation Act, however, that there be a right at the time of the repeal. The right must also be one which at that time may properly be described as 'created, acquired, accrued, established or exercisable'.

With respect to the right to have his appeal considered and determined according to law and to have a grant of leave if it had been wrongly refused, the analogy with the right in Ebser appears to be clear. By analogy with the reasoning in that decision, that right had been acquired or had accrued on the institution of the appeal on 11 June 1999. In the absence of a contrary legislative intention, s 37(1)(c) [Interpretation Act] protected and preserved that right and by the express provisions of s 37(1)(f) that appeal, being a legal proceeding in respect of 'that right', was not affected by the repeal on 5 October 1999 and by the concluding provisions of s 37(1)(f) it 'may be continued ... as if the' 1999 amendment had not been passed."

18 Later in the same judgment, Parker J said at [62]:

"Having presented his case for leave and obtained a decision of the District Court (albeit adverse) on that case, and by appealing from that decision having acquired a right to have a grant of leave if it had been wrongly refused, the appellant in this case may be seen to be in a materially different position than, for example, a worker who had merely applied for a grant of leave but had not had the application heard and determined by the District Court when the 1999 amendment came into force on 5 October 1999. In my view, while the issue involves the drawing of fine distinctions, in these circumstances the appellants may be seen to have acted sufficiently to take advantage of his contingent right to an award of damages in accordance with the former provisions, for that to be a right 'created, acquired, accrued, established or exercisable' within the meaning of s 37(1)(c) of the Interpretation Act.

If that view is correct, in the absence of a contrary legislative intention, the contingent right to an award of damages is not affected by the repeal of the former provisions (s 37(1)(c)), nor is any legal proceeding or remedy in respect of that right (s 37(1)(f)), and by virtue of the concluding provisions of (s 37(1)) any such legal proceeding and remedy may be instituted and enforced 'as if the repealing written law (ie the 1999 amendment) had not been passed or made'. That being so, it would not be relevant that the decision of this Court on appeal to grant leave was made after 5 October 1999."

19 In separate concurring reasons, Malcolm CJ said at [15-17]:

"In my opinion, s 37(1)(c) [of the Interpretation Act 1984] protects the right of an appeal from a refusal of leave under the repeal provisions where the appeal has been commenced and was pending as at 5 October 1999. The right of appeal to the Full Court by leave of the Supreme Court or a Judge existed at that date by virtue of the provisions of s 79(1)(b) of the District Court of Western Australia Act 1969. Leave to appeal had been duly obtained and the appeal commenced by notice of appeal dated 11 June 1999. Section 37(1)(f) of the Interpretation Act provides that the repeal of the former provision does not affect any 'legal proceedings or remedy' in respect of any such right. Finally, s 37(1) concludes by providing that any such legal proceeding may be continued 'as if the repealing law had not been passed or made'. This clearly has the effect that an appeal pending under the repealed law is required to be heard and determined under the repealed law in the same way as if it had not in fact been repealed.

Furthermore, s 37(2) of the Interpretation Act provides that:

'The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals.'

In my view, there is no inconsistency between the provisions of s 32(7) of the Amendment Act and s 37 of the Interpretation Act. The result is, where no relevant proceedings are pending as at 5 October 1999, then, irrespective of the date of the accident or the date upon which the injury or disability occurred, the Amendment Act applies, unless one or other of the saving provisions in s 37(2) applies. In my view, in a case where one or other of the saving provisions applies, the intention of the legislation on its proper construction is that pending proceedings are subject to the statutory regime as it was prior to the amendment."

20 Wheeler J delivered separate reasons concurring in the result and said at [80]

"The effect of the 1999 amendments together with the provisions of the existing Act into which they were incorporated, can only be, in my view, to set up a scheme which prohibits the awarding of damages, after the entry into force of the 1999 amendments, whenever the injury occurred and whether or not legal proceedings may have been commenced before that date, unless the award complies with s 93D and following sections. To adopt the words of Fullagar J [in Fisher v Hepburn Ltd [1960] HCA 80; (1960) 105 CLR 188] the 'whole subject matter' of the Division is the award of damages."

"From the date of assent to the 1999 amendments, then, leaving aside the transitional provisions, the circumstances in which damages might be awarded did not include circumstances in which, pursuant to the former provisions, a person had either made an application for leave or had an application for leave determined, or had received a grant of leave from the District Court. A new and different regime applied."

22 In the end result, all of the Judges in that case concluded that s 37(1) of the Interpretation Act preserved the position of the appellant because the appellant had already obtained leave from the District Court to commence proceedings. The appeal was allowed and the appellant was granted leave to institute proceedings to recover damages notwithstanding the fact that the judgment in Toolan was published on 24 April 2001 long after the amending Act came into force on 5 October 1999.

23 Following the publication of the decision in Toolan, the parties were given the opportunity of making further written submissions. The appellants' submissions of 23 and 24 May 2001 and the respondent's submissions of 23 May 2001 have been taken into account.

24 A further issue raised on appeal concerns O 42 r 2 of the Rules of the Supreme Court which provides:

"(1) A judgment or order of the Court takes effect from the day of its date.

(2) Such judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day."

25 It was contended by counsel for each of the appellants that this Court is empowered by that rule to make an order granting leave to proceed from the date upon which the appellant's in each case lodged their applications. Counsel for the appellant, however, in the matter of Dossett, conceded that if the appeal failed on the first ground, it would not succeed on this ground alone.

26 In Bingham v England (1996) 17 WAR 226, Kennedy ACJ, when considering the provisions of O 42 r 2 said at 234:

"Secondly, counsel contended that, if the court were minded to grant leave, it should make the order granting leave nunc pro tunc, relying upon the common law and upon O 42, r 2 of the Rules of the Supreme Court 1971 (WA), which provides as follows:

2(1) A judgment or order of the Court takes effect from the day of its date.

(2) Such judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders that it be dated as of some earlier or later day, in which case it shall be dated as of that other day."

Traditionally, the power to make an order nunc pro tunc has been exercised cautiously and only where there has been something exceptional in the facts to justify the making of such an order. It has been exercised, for example, where the plaintiff has died after the hearing of his claim, but before judgment, and in order 'to prevent unjust prejudice to a party claiming relief

occasioned by delay which unavoidably arises without fault on that party's part and simply to avoid the exigencies of court lists."

27 In his conclusion on that point, Kennedy ACJ said at 234:

"Nevertheless, it must be accepted that the court cannot, by antedating an order, confer upon itself a jurisdiction which it does not otherwise possess: see Re Keystone Knitting Mills' Trademark [1929] 1Ch 92 at 107, 108."

28 The same proposition was supported by Kirby P in Clarke v Bailey (1993) 30 NSWLR 556 at 569.

29 In my opinion, once the conclusion has been reached that the appellant's position is not preserved either by s 37(1) of the Interpretation Act or by the transitional provisions set out earlier in these reasons as explained in the judgments in Toolan, then there is nothing in O 42 r 2 which would enable the court to grant the orders which the appellants seek.

30 In my view Toolan is sufficient authority to determine the present appeal. The appellants, not having had their applications determined prior to 5 October 1999, are precluded from obtaining leave notwithstanding the provisions of s 37(1) of the Interpretation Act, which would not have the effect of preserving their position even although applications for leave were lodged before that date.

31 For these reasons, in my view, these appeals should be dismissed.

32 STEIN AJ: I have had the benefit of reading the reasons of the Hon Justice Scott. I am in agreement with those reasons and have nothing further to add.