the proceeding before the primary judge
14 On 12 May 2014, Woodside filed an amended interlocutory application dated 9 May 2014 pursuant to which it sought an order that the question of whether the Court could award damages against Woodside in tort or contract in respect of mental or physical injury suffered by Dr Zaghloul be heard and determined as a separate question.
15 Woodside also sought an order that the whole of Dr Zaghloul's proceeding be dismissed insofar as Dr Zaghloul claimed damages in tort or contract in respect of the mental or physical injury suffered by him. Other relief was also sought, but that is not relevant to this appeal.
16 In support of the interlocutory application, Woodside relied upon an affidavit of Ms Young, a lawyer for Woodside's solicitors. Ms Young's evidence discloses that the registration of Dr Zaghloul's election recorded that his degree of permanent whole of person impairment was 57%. That is a fact relevant to s 93K(4)(d) because it shows that his injury was sufficiently serious to satisfy that provision of the Compensation Act.
17 The primary judge ordered that the question of whether the Court could award damages in tort or contract in respect of mental or physical injury allegedly suffered by Dr Zaghloul be tried as a separate question. The primary judge determined that question in Dr Zaghloul's favour and held that the Court had the power to award Dr Zaghloul the damages he claimed.
18 In coming to that decision, the primary judge found that Dr Zaghloul's claim fell to be considered in accordance with the Compensation Act as in force prior to 1 October 2011. The primary judge noted that the question of construction before him had been considered and determined by the Court of Appeal of the Supreme Court of Western Australia (Newnes JA dissenting) in the case of St John of God Health Care Inc v Austin (2014) 46 WAR 208 (Austin).
19 In Austin, Pullin JA, with whom Murphy JA agreed, found that on the proper construction of s 93K(4)(c) of the Compensation Act, a court was not precluded from awarding damages in circumstances where a party had commenced a proceeding seeking the damages prior to the Director notifying the party of the registration of that party's election to retain the right to seek damages at common law.
20 The majority held that s 93K(4) did not preclude a court from awarding damages provided that the court proceedings claiming the damages were commenced no later than 30 days after the Director gave the party written notice that the Director had registered the election.
21 In Austin at [9] and [10], Pullin JA observed as follows:
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) 99 FLR 21 at 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 (at 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 [2006] 1 Qd R 587; Dickin v BHP Billiton Ltd [2004] VSC 215; Yamamori (Hong Kong) Ltd v CTG Pty Ltd (1992) 109 FLR 249; see also the English case of R v Inland Revenue Commissioners; Ex parte Knight [1973] 3 All ER 721 at 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 at [34] per 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.
22 Newnes JA, in dissent, observed at [33] to [35] as follows:
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.
23 At [43] to [45], Newnes JA went on to observe:
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.
24 The primary judge said that he preferred the view expressed by Newnes JA. The primary judge went on to say that the presence of the words, "the period of", after the word "within" and before the phrase, "30 days after", and the fact that s 93K(4) of the statute prescribed a sequential process, were other indicia which supported the observations of Newnes JA. The primary judge also referred to the fact that there were dissenting judges in two of the cases referred to by the majority, which favoured the view subsequently adopted by Newnes JA.
25 However, the primary judge went on to observe at [122] and [123]:
122 However, I am not prepared to conclude that the majority judgment in Austin is plainly wrong. It is a matter upon which minds may differ and have differed. That this is so is not a sufficient basis to decline to follow a decision of an intermediate appellate court on the same question: Transurban City Link Ltd v Allan (1999) 95 FCR 553 at [29], citing with apparent approval Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 at 20. Those decisions concern the Full Court not departing from another Full Court decision in such circumstances. It is more the case where a single judge is confronted by a decision of a Full Court or other intermediate appellate court.
123 Accordingly, I must follow Austin and decide the separate question in the affirmative, namely that the Court can award such damages to the applicant.