The 93K(4)(c) submission
15 This relates to two summary judgment applications made by the respondent. The effect of the submission is that in respect to the first application the respondent relied upon s 93K of the Compensation Act as it stood following amendments made to this provision in October 2011. Dr Zaghloul submitted this should never have been advanced by the respondent as the 'law was clear that it was the pre-2011 legislation which applied'. Then he submitted that the respondent had argued that even if the pre-2011 position prevailed then it was not to be construed in the way Dr Zaghloul submitted.
16 It is instructive to set out the respondent's written submission in relation to the summary judgment applications as they concerned s 93K as well as part of an affidavit filed on behalf of the respondent.
17 The respondent's amended outline of submissions dated 22 April 2013 contained the following:
[20] Section 93K(4) of the Compensation Act (also in Division 2) relevantly provides that:
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 after the Director gives the worker written notice that the Director has registered the election; …
[Emphasis in original]
[21] Section 93K(4)(c) in its present form was inserted into the Compensation Act by the Workers Compensation and Injury Management Amendment Act 2011. The amendment commenced on 1 October 2011.
[22] Regulation 22 of the Workers Compensation and Injury management Regulations 1982 provides that:
(1) An election under section 93K(4)(a) of the Act is made by completing an election form in the form of Form 34 in Appendix 1 and lodging it with the Director.
(2) Unless under sub regulation (3) the Director refuses to register the election, the Director is to -
(a) register the election in a register kept for that purpose on the day on which the Director receives the election form; and
(b) complete the relevant section of the election form and give a copy of it to the worker and the employer.
(3) The Director may refuse to register the election if not satisfied that the worker has been properly advised of the consequences of the election.
[23] The applicant claims to have suffered mental and physical injury as a result of bullying and harassment by the respondent's employees. There is no doubt that such an injury would be one in respect of which compensation is payable under the Compensation Act.
[24] Further, the applicant has made a claim for weekly payments and medical expenses under the Compensation Act in respect of his injuries, that claim has been accepted by the respondent (who is a self-insurer) under the Act and the applicant has been paid compensation up to the Prescribed Amount: see Young Affidavit annexure JEY-6.
[25] Accordingly Division 2 of the Compensation Act applies to the awarding of damages against the respondent independently of the Act in respect of an injury suffered by the applicant if it was caused by the respondent's negligence or other tort. Further, Division 2 applies even if the damages resulting from the respondent's negligence or other tort are sought to be recovered in an action of breach of contract or other action.
[26] The result is that sections 93C and 93K(4) apply to prevent the Court awarding damages for an injury as defined in the Act unless court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election.
[27] The requirement for an election to be made before commencing proceedings appears from the plain words of the section.
[28] That that is the effect of section 93K(4)(c) is confirmed by the parliamentary debate leading to the passage of the provision through the Legislative Council. In the Committee stage a motion was put to remove proposed section 93K(4)(c). In response to a suggestion that proposed section 93K(4)(c) imposed an "artificial constraint" on workers commencing court proceedings, the Minister for Commerce (in charge of the Bill) said (Hansard, Legislative Council, 17 August 2011, pp 5982-5983):
The member's question was: is there not another artificial constraint in section 93K, which the member described? That is not an artificial constraint or a pointless exercise; it is the whole point of some very significant charges made to this system around 2004. The system was made better about that time and it is working well. That aspect is to introduce the factor of having to make an election and register that election before someone can exercise the option to commence common law court action. That is the whole point. Therefore, it is not a superfluous little detail; it is the whole point of how we have been operating and it is an important point. Although I acknowledge the points that have been made about other reasons why we might seek to amend this particular section, it is such a fundamental part of the current system that I am not prepared to entertain doing away with that aspect of election and registration before taking court action….
[29] Section 93K(4)(c) in its present form has yet to be judicially considered. However in Austin v St John of God Health Care Inc [2012] WADC 167, Hewitt DR in considering a summary judgment application, in similar circumstances to the present save that I fell to be considered under the section as it stood prior to October 2011, said at [12]-[13]:
[12] The case advanced by the defendant is that irrespective of whether the pre or post-action version of the Worker's Compensation and Injury Management Act applies, the plaintiff has failed to satisfy the necessary precondition to be entitled to an award of damages, that the situation cannot be retrospectively cured, and that her action is thereby doomed by virtue of the fact that the court will be precluded from awarding any damages to her.
[13] There is no doubt that under the current incarnation of s 93K(4)(c), were it to apply, the plaintiff's case would not be tenable. There is however authority to suggest that a cause of action, vested in a plaintiff, cannot be abrogated, save by the clearest words within the legislation expressing parliament's intention to do so: Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428; (2003) 218 CLR 1. On that authority I conclude that if the plaintiff's action was sustainable at the time she commenced it, nothing in the amending legislation would have defeated the claim and I therefore intend to restrict my analysis to the Act as it existed when the writ was filed.
[30] The applicant commenced the proceedings on 27 August 2012. The applicant did not make an election in accordance with section 93K(4)(a) until on or about 25 February 2013: Young Affidavit of [17] and JEY-7.
[31] Accordingly:
(a) by reason of section 93K(4)(c) the Court cannot award damages to the applicant in tort or contract for mental or physical injury; and
(b) to that extent, the applicant's claim has no reasonable prospects of success and is therefore also an abuse of the process of the Court.
[32] The respondent seeks summary judgment and an order dismissing those parts of the claim in which the applicant seeks damages in tort and contract for mental and physical injury.
18 Following a decision by the Western Australian Court of Appeal in St John of God Health Care v Austin [2014] WASCA 11, the respondent applied for leave to discontinue the first summary judgment application.
19 It relied upon the affidavit of Mrs Jacqueline Young affirmed on 9 May 2014. Paragraphs 19-31 state:
[19] On 14 January 2014 the Court of Appeal of the Supreme Court of Western Australia handed down its decision in St John of God Health Care v Austin [2014] WASCA 11 (Austin).
[20] The decision in Austin considered the effect of section 93K(4)(c) of the Workers Compensation and Injury Management Act 1981 (WA) (Compensation Act) as in force prior to 1 October 2011 when it was amended by the Workers Compensation and Injury Management Amendment Act 2011 (Amendment Act).
[21] If, as the applicant alleges, he was injured in or about April 2011 (see paragraphs 27 and 42 of the SOC and annexures JEY-5 and JEU-7 to my affidavit sworn on 16 April 2013 and filed in the Proceeding), the applicant's common law right to recover damages may have accrued at that time so that, by reason of paragraph 37(1)(c) of the Interpretation Act 1984 (WA), the applicant may have an accrued right to pursue his claim for common law damages for personal injury in accordance with the Compensation Act as in force at that time: see Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 at [10]-[35] and [75]-[85], particularly at [32]-[33] and [77]-[78].
[22] At the time of swearing my affidavit dated 2 May 2014 I was not aware of the decision in Barminco or that, notwithstanding the wording of section 93K(4)(c) of the Compensation Act, the applicant may have an accrued right to pursue his claim for common law damages for personal injury, other than in compliance with the Compensation Act as in force from 1 October 2011.
[23] Prior to 1 October 2011, section 93K(4) of the Compensation Act provided:
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; and
(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
[24] 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".
[25] The Court of Appeal in Austin held, by a majority, that the word "within" in the section meant "not later than" so that, provided a worker made an election and the Director gave the worker notice of the registration of the election, and the worker commenced proceedings before the end of 30 days after the Director gave notice and before judgment in proceedings commenced by the worker, the section would have been complied with. The majority did not consider the section required a worker to make an election and to have that election registered before commencing proceedings.
[26] The applicant commenced the current proceeding on 27 August 2012. I refer to my affidavit sworn on 16 April 2013 and filed in the Proceeding. I am aware from the documents annexed to that affidavit at JEY-5 and JEY-7 that the applicant first made a claim under the Compensation Act on 5 December 2012, submitted a Form 34 - Election to Retain Right to Seek Damages dated 9 February 2013 which was received by the Director on 20 February 2013, and that the Director notified the applicant that she had registered his election on 25 February 2013.
[27] If the majority decision in Austin is correct, and if the applicant does have an accrued right to pursue his claim for common law damages for personal injury in accordance with the Compensation Act as in force prior to 1 October 2011, then the applicant has satisfied section 93K(4)(c), as in force prior to 1 October 2011, because he commenced the current proceeding before the end of 30 days after the Director gave him notice that she had registered his election.
[28] The respondent however considers:
(a) firstly, that it is arguable that the right which the applicant had prior to 1 October 2011 was a qualified right to claim common law damages in accordance with and subject to the Compensation Act as in force at that time and that because the applicant did not take any steps to avail himself of that right prior to 1 October 2011 his claim is to be dealt with in accordance with and subject to the Compensation Act as in force after 1 October 2011: see Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at [30] citing Toolan v Metropolitan Perth Passenger Transport Trust (2001) 25 WAR 1 at 17. If that is right then section 93K(4) of the Compensation Act as in force after 1 October 2011 requires a worker to make an election prior to commencing court proceedings in order for the court to be able to award common law damages for personal injury (other than exemplary or punitive damages). The proposition that the failure to make an election is a mere procedural defect which can somehow be retrospectively cured did not find favour with the Court of Appeal in Austin: [2014] WASCA 11 at [12] and [48]-[50]; and
(b) in any event, and with respect, that the majority decision in Austin is wrong and the dissenting judgment of Newnes JA is to be preferred for the reasons which his Honour gives. Newnes JA said at [33] that in his 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".
[30] If the majority decision in Austin is wrong, then even if the applicant is entitled to have his common law damages claim dealt with in accordance with the Compensation Act as in force at the time that he sustained his injury, section 93K(4) of the Act as then in force required a worker to make an election and to have that election registered before commencing proceedings in order for the court to be able to award common law damages for personal injury (other than exemplary or punitive damages).
[31] The respondent therefore seeks to have the question of which version of the Compensation Act applies and whether the Court can award damages in tort or contract in respect of mental or physical injury suffered by the applicant heard and determined as a separate (preliminary) question pursuant to Rule 30.01 of the FCRs (the proposed separate question).
20 The respondent then made a second application for summary judgment and made written submissions concerning s 93K essentially repeating what had been said by Ms Young in her affidavit.
21 Dr Zaghloul made the following submissions which I have set out without correction:
[27] The lawyers did not inform the Court that amendment of s 93K(4)(c) of WCIM Act, enacted in October 2011 and replaced the word "within" to "after", was highly significant to my case. Further, the lawyers emphasised the word "after" in all submissions and affidavits. Had the case been determined on the basis of the word "after", the entire proceeding would have dissolved to the detriment of the due administration of justice.
[28] When the significance of the October 2011 amendment of s 93K(4)(c) of WCIM Act came to light, the lawyers disputed that I had an accrued right to have my case determined on the basis of the word "within" in the pre-October 2011 amendment of WCIM Act, or submitted that damages would be denied irrespective of which amendment to be used. Both submissions were contrary to authorities and statute.
[29] The lawyers' asserted, without providing any authority, that the registration of the election to seek Common Law damages pursuant to s 93K(4)(c) of WCIM Act was substantiate and not procedural. The weight of authorities was to the contrary. The courts disposed not to treat matters or facts as being substantive unless the intention of Parliament to ascribe that characteristic to them is clearly expressed.
22 These submissions have no substance. As Ms Young's affidavit makes clear the first interlocutory application was withdrawn following the decision in Austin. She also deposed that she had not previously been aware of the decision of the Court of Appeal in Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88.
23 Ms Young, deposed to what is in her [25]-[31] as set out under [22] above. It cannot be said that these arguments were 'contrary to authorities and statute' as Dr Zaghloul would have it. These were tenable arguments. There was nothing remotely misleading about any of them. They were clearly and openly articulated. It was upon these arguments that the respondent sought summary judgment in its favour.
24 In Zaghloul v Woodside Energy Ltd (No 5) [2014] FCA 1042 I dismissed the respondent's application for summary judgment. I dealt with the complex issues concerning s 93K between [82]-[121] concluding that, the respondents submissions were persuasive. Nonetheless, I was not prepared to conclude that the majority in Austin were clearly wrong and accordingly I followed that judgment.
25 Indeed on appeal, the Full Court observed that whilst the view of Newnes JA in Austin could be criticised in some respects, nonetheless there was much to be said of (his Honour's) alternative view, but affirmed my conclusion that it could not be said that the majority in Austin was "plainly wrong": Woodside Petroleum Ltd v Zaghloul [2015] FCAFC 135 at [29] and [40]. As I earlier mentioned, Dr Zaghloul's submission was that the law in relation to the s 93K issues was clear. That is not so. The position was far from clear. The respondent by its lawyers responsibly applied to discontinue the first interlocutory application following the judgment of the Court of Appeal in Austin. Its lawyers, again, responsibly and professionally advanced arguments in support of the second interlocutory application. They were not, contrary to Dr Zaghloul's submission, reckless in so doing as being indifferent to the truth or falsity of the pleaded defence. There is no substance to these serious allegations made by Dr Zaghloul.
26 Dr Zaghloul's submission that the lawyers ought to have raised authorities such as Adco Constructions Pty Ltd v Goudappel [2014] HCA 18 per French CJ, Crennan, Keifel and Keane JJ at [28]-[29]; s 18 of the Interpretation Act 1984 (WA) and Bird v Commonwealth of Australia (1988) 78 ALR 469, does not affect this conclusion.