FEDERAL COURT OF AUSTRALIA

Zaghloul v Woodside Energy Ltd (No 5) [2014] FCA 1042

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 24 March 2014 be dismissed.

2.    The applicant’s claims for damages for personal injury under s 82(1) of the Trade Practices Act 1974 (Cth) be dismissed.

3.    Otherwise, the respondent’s amended interlocutory application dated 9 May 2014 be dismissed.

4.    The separate question of whether the Court can award damages in tort or contract in respect of mental or physical injury allegedly suffered by the applicant, ordered, on 20 May 2014, to be tried, be answered in the affirmative.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant, by interlocutory application dated 24 March 2014, seeks summary judgment in a sum in excess of $42 million against the respondent. However, in his affidavit affirmed on 2 June 2014, it appears that he is now claiming approximately $26 million. Likewise, the respondent’s amended interlocutory application, dated 9 May 2014, seeks summary judgment against the applicant as well as certain declaratory relief. Each interlocutory application is made pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (FCR).

2    There is also before the Court the trial of a separate question which raises a question of statutory construction.

Principles

3    The principles generally applicable to applications under s 31A are well established. Section 31A lowers the bar for obtaining summary judgment. The inquiry required is whether there is a "reasonable" prospect of prosecuting the proceeding or part of the proceeding, not whether a certain and concluded determination could be made that the proceeding or part of the proceeding would necessarily fail: Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [53]-[56] per Hayne, Crennan, Kiefel and Bell JJ.

4    Section 31A may be invoked where a determination on a question of law renders an applicant's case unmeritorious or unsustainable: McNamara v San (No 3) (2010) 183 FCR 328 at [50]. It is this principle which underpins the respondent’s claim for summary judgment.     

5    In addition to s 31A, r 26.01 provides that a party may apply to the Court for an order that summary judgment be given in circumstances where, among other things, a party has no reasonable prospect of success or the proceeding is an abuse of the process of the Court.

6    It is an abuse of process to maintain an action which is clearly doomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393.

The applicant’s interlocutory application

7    The applicant claims damages against the respondent pursuant to s 82 of the Trade Practices Act 1974 (Cth) (TPA) as well as in contract and (purportedly) in tort.

The statement of claim

8    The applicant alleges that the respondent contravened s 52 of the TPA and engaged in conduct, involving alleged misrepresentations, that was deceptive or misleading; caused negligent infliction of mental harm and consequential physical injury to the applicant; engaged in bullying conduct against the applicant; failed to apply performance assessment guidelines and policies that applied to the applicant in a fair and non-discriminatory manner and failed to administer its policies, standards, guidelines and code of conduct in good faith. I will consider these in a little more detail below.

9    The applicant submits that it is not in dispute that the respondent accepted liability for his psychiatric injuries. He points to the respondent’s letter dated 31 January 2013 which stated, relevantly, as follows:

As you may be aware Woodside is self insured for the purposes of workers’ compensation. This formal notice is a requirement under the statute.

With reference to this claim you are notified that liability is accepted for anxiety and/or depressive disorder causing total incapacity for work with effect from 13 April 2011 resulting from unsatisfactory management of your work performance.

10    The applicant contends that this is an acceptance of liability for his psychiatric injuries and establishes that the respondent is vicariously liable for the tort of intentional and/ or negligent infliction of psychiatric harm. Consequently, as the applicant submits, the elements of liability for negligence (duty of care, breach of duty, causation and harm) are established. Thus the applicant submits the only issue to be determined is the quantum of damages.

11    The admission of liability rises no higher than its text and context. It amounts to no more than an admission of liability for the purposes of the Workers’ Compensation and Injury Management Act 1981 (WA) (Compensation Act) under s 57B(2)(a) of that Act. It is not an admission of anything pleaded in the statement of claim. In particular it is not an admission of contractual or tortious negligence.

12    The applicant further submits that the respondent has admitted to the allegations of bullying. He refers to the letter from Mr Ian Masson, “the respondent's HR VP”, dated 15 March 2012, to the applicant in which, he submits, the respondent admitted that the bullying allegations were substantiated. I have set out the full content of this letter.

Dr Hassan Zaghloul

3 Henry Street

PEPPERMINT GROVE WA 6011

15 March 2012

Dear Hassan

ALLEGATIONS OF WORKPLACE BULLYING

As previously advised, the Company engaged Meridian Security and Investigations (Meridian) to conduct an independent investigation into allegations of workplace bullying set out in your letter of complaint dated 14 July 2011.

Meridian has completed a comprehensive investigation into the 47 allegations referred to in your original letter of complaint and as detailed in your formal statement and have provided me with a report of its findings.

In relation to the allegations Meridian found:

38 allegations were not substantiated;

3 allegations substantiated;

4 allegations substantiated but did not constitute bullying; and

2 allegations not able to be substantiated or otherwise.

Attached is a table of the allegations, the evidence and Meridian's findings.

You will see that the allegations that were substantiated included that:

•    Mr Male made a comment to you to the effect that he was your skill pool manager and you were frustrating him;

•    you were perceived to be blamed for negative issues that came from the assurance group;

•    on returning from sick leave for surgery you were given no feedback on your performance and you were not advised of your performance rating before you received your payslip indicating that you had not received a bonus;

•    your workload was reduced - however this was a result of the role being split and you giving up your role of TA;

•    you raised concerns about being stressed and treated badly but your concerns were not investigated or addressed at the time.

These findings indicate to me that you have been subjected to inappropriate behaviours which were not consistent with best practice expected of the Company’s employees and some of which could constitute workplace bullying albeit at the lower end of the scale in my view.

Those involved in this inappropriate behaviour will be counselled in relation to their actions and, where appropriate, performance managed. We will act to ensure that such conduct is not repeated in the future.

Importantly, the investigation found that there was no conspiracy or collusion by people inside or outside the Company to bully you.

I trust this finalises your complaint and I look forward to your returning to work as soon as you are medically cleared to do so.

In this regard I propose that we meet to discuss the arrangements for your return to work.

In the meantime, I seek your consent for the Company's occupational physician to consult with your doctor in order to agree an appropriate plan for your return to work when you are able to do so.

Yours sincerely

Ian Masson

Vice President Human Resources

13    Again, this letter does not amount to an admission by the respondent of anything pleaded against it by the applicant.

14    First, Mr Masson was merely expressing a personal view based on untested findings by a third party, Meridian.

15    Second, so far as concerned bullying, Mr Masson expressed the opinion that the behaviour “could” constitute workplace bullying. He stated, in terms, that this was his view.

16    Taken together the letter does not constitute an admission by the respondent, never mind an admission related to the applicant’s pleaded claims.

17    The respondent submits that the summary judgment application is misconceived for the following reasons.

18    Firstly, to the extent that the applicant seeks common law damages in respect of mental or physical injury the applicant’s claim is not maintainable by reason of s 93K(4)(c) of the Compensation Act.

19    Secondly, to the extent that the applicant seeks damages for personal injury under the TPA based on contraventions of s 52 of the TPA the claim is not maintainable by reason of s 82(1AAA) of the TPA.

20    Thirdly, to the extent that any of the applicant’s claims are for economic loss and not in respect of any personal injury or wrong done to the applicant, the claim has been discontinued by the applicant’s trustees in bankruptcy pursuant to s 60(2) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).

21    The respondent’s amended interlocutory application filed on 12 May 2014 raises each of the above issues. The respondent relies on the affidavits of Jacqueline Elizabeth Young affirmed on 9 May 2014 and 5 June 2014 in support of that application.

22    However, quite apart from these threshold issues the respondent submits that the applicant’s summary judgment application is misconceived. I accept this submission.

23    The statement of claim contains at least 44 separate allegations of misconduct by the respondent’s employees. The allegations are found in paras [30]-[33] and [40] of, and Annexure C to, the statement of claim. The allegations extend over a period of 20 months from August 2009 to April 2011.

24    The defence filed by the respondent denies each and every allegation of bullying or improper conduct made by the applicant.

25    The respondent relies on the affidavit of Jacqueline Elizabeth Young affirmed on 17 June 2014. Ms Young deposes to the breadth of the applicant’s allegations, the respondent’s intention to call witnesses to dispute each of the allegations and the particular witnesses and the number of witnesses the respondent intends to call. In particular, Ms Young deposes that the respondent intends to call each of the ten individuals who the applicant has named in the statement of claim as having engaged in bullying or other improper conduct to refute the allegations made against them. Ms Young has deposed that the respondent has informed her that each of those ten individuals has disputed the allegations made against them.

26    She also deposes that a further nine employees who she identified will be called to give evidence in support of the respondent’s denials in its defence and a further named witness to give evidence about the independent investigation conducted into the applicant’s complaint by Meridian.

27    In addition to the respondent’s witnesses the respondent will require the applicant’s medical witnesses for cross-examination.

28    Ms Young also deposes that seven allegations have been made against unnamed persons and that further allegations have been made by the applicant in a statement signed by him on 23 September 2011 so that the respondent may have to call further witnesses to refute those allegations if they are pressed in the proceeding.

29    I accept the respondent’s submission that even if the applicant was able to establish on the evidence that bullying occurred (which is denied), there are questions of foreseeability, breach of duty and causation to be determined just to establish liability. Each of these matters will also have to be the subject of extensive witness evidence at trial.

30    In relation to the applicant’s claims based on s 52 of the TPA the applicant must establish that the representations he relies upon were misleading or deceptive at the time they were made (i.e. prior to and perhaps also during January or February 2008). The applicant’s affidavits filed in support of his application for summary judgment do not specifically address that issue. If that issue is allowed to go to trial the respondent had indicated that it will lead evidence to show that the respondent had reasonable grounds for making the representations at the time they were made. Ms Young deposed to the nature of evidence that the respondent would call going to the steps taken by the respondent to promote a safe and non-discriminatory workplace prior to January-February 2008 to establish that the respondent at the time had reasonable grounds for making those representations which are admitted in the defence. This will only be necessary in the event that the s 52 claims proceed to a trial.

31    Accordingly, leaving to one side the threshold issues as described by the respondent, there are many issues of fact which require to be tried.

32    Disputed questions of fact should be determined at trial, unless the asserted facts are so improbable that there will be no utility in allowing them to go to trial: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372.

33    For these reasons alone this application by the applicant for summary judgment ought fail.

The respondent’s amended interlocutory application

34    In its application the respondent sought:

(a)    pursuant to ss 21, 22 and 23 of the FCA Act and the Court's inherent jurisdiction, a declaration that by reason of the election of the applicant's trustees in bankruptcy made on 10 February 2014, the proceeding has been discontinued save to the extent of any claims which fall within the exception in s 60(4) of the Bankruptcy Act;

(b)    pursuant to s 31A(2) of the FCA Act and r 26.01 of the FCR, an order dismissing those parts of the proceeding in which the applicant claims damages in respect of mental or physical injury suffered by the applicant based on contraventions of s 52 of the TPA;

(c)    pursuant to r 30.01 of the FCR, that the question of whether the Court can award damages in tort or contract in respect of mental or physical injury suffered by the applicant be heard and determined as a separate question;

(d)    pursuant to r 30.02 of the FCR an order dismissing the whole of the proceeding;

(e)    in the alternative to (d):

(i)    pursuant to r 30.02 of the FCR an order dismissing the proceeding in so far as the applicant claims damages in tort or contract in respect of mental or physical injury suffered by the applicant; and

(ii)    pursuant to r 16.21 of the FCR an order that the statement of claim be struck out on the basis that it fails to disclose a reasonable cause of action.

35    I made on 20 May 2014 an order pursuant to r 30.01 of the FCR that the question of whether the Court can award damages in tort or contract in respect of mental or physical injury alleged to have been suffered by the applicant be heard and determined as a separate question (the separate question). The separate question raises an issue of statutory construction in respect of s 93K(4) of the Compensation Act.

36    I also ordered that the trial of the separate question be heard at the same time as the respondent’s amended interlocutory application.

37    The respondent relies on the affidavit of Jacqueline Elizabeth Young affirmed on 5 June 2014 (Young Affidavit).

Background

38    The applicant commenced the substantive proceeding (the Proceeding) on 27 August 2012 by filing an originating application and accompanying statement of claim.

39    The applicant's claims as pleaded in his statement of claim can be divided into the following categories:

(a)    misleading or deceptive conduct contrary to s 52 of the TPA (the TPA claims);

(b)    bullying and harassment in breach of terms in the applicant's contract of employment;

(c)    bullying and harassment in breach of the tortious duty of care which the respondent owed to the applicant;

(d)    breach of contract by the respondent from early 2010 changing the applicant's position, title and reporting arrangements and transferring the applicant without notice or reasonable notice; and

(e)    breach of contract caused by the respondent failing to apply the performance assessment guidelines and policies that applied to the applicant in a fair and non-discriminatory manner.

40    The respondent submits that by reason of limitations contained in the Bankruptcy Act, TPA and Compensation Act each of the applicant's pleaded claims fall away such that the whole of the Proceeding should be dismissed. I will deal with these in turn.

The applicant's bankruptcy

41    As appears from the Young Affidavit, the applicant became bankrupt on 26 July 2013 by a sequestration order made in the Federal Circuit Court of Australia, Sydney, pursuant to the provisions of the Bankruptcy Act. David J F Lombe and Elizabeth Russell are the joint trustees of the applicant's bankrupt estate (the Trustees).

42    On 7 February 2014, on behalf of the respondent, Ashurst Australia sent a letter to the Trustees notifying them of the Proceeding, referring to s 60 of the Bankruptcy Act and asking that the Trustees elect in writing whether to prosecute or discontinue the Proceeding to the extent that the Proceeding was in respect of claims which did not fall within the exemption in s 60(4) of the Bankruptcy Act.

43    On 12 February 2014 Ms Russell notified Ms Young, by email attaching a letter dated 10 February 2014, that pursuant to s 60(2) of the Bankruptcy Act the Trustees elected to discontinue the action. As a result of the Trustees' election the applicant’s proceeding has been discontinued save to the extent of any claims which fall within the exception in s 60(4) of the Bankruptcy Act, that is, relevantly, save to the extent of any claims in respect of any personal injury or wrong done to the applicant.

44    Accordingly the respondent seeks a declaration that by reason of the election made by the Trustees on 10 February 2014, the Proceeding has been discontinued save to the extent of any claims which fall within the exception in s 60(4) of the Bankruptcy Act. I do not consider it necessary to make such a declaration. Nonetheless, there remains a question as to the extent and characterisation of the applicant’s claims for personal injury for the purposes of s 60(4). I will consider this in relation to the claims made for breach of the TPA.

The TPA claims

45    The applicant alleges in his statement of claim that:

(a)     the respondent made representations in a job advertisement published in The West Australian on 5 January 2008 (the Advertisement), in its 2007 annual report and on its website on which the applicant relied in responding to the Advertisement;

(b)    the respondent owed a duty to the applicant not to engage in misleading or deceptive conduct contrary to s 52 of the TPA;

(c)    the representations were false or misleading contrary to s 52 of the TPA; and

(d)    the applicant suffered loss and damage thereby, which loss and damage is continuing.

46    The respondent points out that the applicant does not specify in his statement of claim whether the loss and damage claimed under this head is for personal injury or whether it is for economic loss.

47    The respondent then submits that to the extent that the TPA claims are for economic loss and not in respect of any personal injury or wrong done to the applicant, they have been discontinued by the Trustees pursuant to s 60(2) of the Bankruptcy Act.

48    I do not agree. I accept the applicant’s submission that his claim for economic loss is one component of damages for personal injury.

49    Section 60(4) relevantly creates an exception to the application of s 60(2) in relation to a bankrupt person where that person continues, in his name, an action commenced before he became a bankrupt in respect of any personal injury.

50    Here, the applicant, in my view, satisfies the criteria in s 60(4). It would be artificial to separate out his claim for damages according to whether it were general damages for pain and suffering on the one hand and special damages, being economic loss, such as medical expenses related to his alleged injuries, on the other hand. These are but different aspects of compensatory damages flowing from his action in respect of alleged personal injury. Such a categorisation of such related damages was articulated by Fullagar J in PAFF v Speed (1961) 105 CLR 549, a personal injury case.

51    However, even accepting that the TPA claims seek damages for personal injury including related economic loss, nonetheless they are not maintainable by reason of s 82(1AAA) of the TPA.

52    Section 82(1AAA) provides that a person may not recover the amount of any loss or damage for personal injury under s 82(1) of the TPA based on contraventions of Div 1 of Part V, the misleading or deceptive conduct and other unfair practices provisions, of the TPA.

53    The term "personal injury" is relevantly defined in s 4KA of the TPA as including "impairment of a person's physical or mental condition" but not including "an impairment of a person's mental condition unless the impairment consists of a recognised psychiatric illness".

54    Accordingly, the respondent seeks summary judgment pursuant to s 31A(2) of the FCA Act and r 26.01 of the FCR in relation to those parts of the Proceeding in which the applicant claims damages in respect of mental or physical injury suffered by the applicant based on contraventions of s 52 of the TPA.

55    The applicant contends that he has suffered “personal injury” for the purposes of s 60(4) of the Bankruptcy Act, which he accepts is, indeed characterises as, a recognised psychiatric illness. However, he submits, in effect, that this does not constitute and is to be distinguished from “impairment of [his] mental condition” and thus does not come within the exclusion under s 82(1AAA) read with s 4KA.

56    The applicant relies on a report of Dr Gemma Edwards-Smith, the respondent's nominated psychiatrist, dated 7 August 2012. This report is an annexure to the affidavit of the applicant affirmed on 20 June 2013. On 18 September 2013, I ordered that this affidavit not be published or disclosed without leave of the Court. This was the subject of a judgment: Zaghloul v Woodside Energy Ltd (No 2) [2013] FCA 947. However, the report on which the applicant seeks to rely does not fall into the category of scandalous material found elsewhere in the affidavit. Accordingly, I will grant the applicant leave to rely upon it. The order of 18 September 2013 otherwise remains in force. Moreover, this same report is annexed to an earlier affidavit of the applicant affirmed on 22 April 2013. No non-publication/disclosure order was made in respect of it.

57    The report states that:

Based upon my evaluation and the reports provided by Mr Zaghloul, there is evidence of an ongoing significant psychiatric disorder being Major Depressive Episode with melancholia. This is based upon the history of longitudinal symptoms of anxiety associated with symptoms of physiological shift including prominent disturbance of sleep, appetite and weight, negative thoughts, anhedonia and fluctuating suicide thoughts.

The disorder is now somewhat treatment resistant. There have been previous prominent symptoms of anxiety and panic attacks ...

....

Mr Zaghloul is totally, at present, incapacitated for employment due to the severity of his psychiatric illness. [Emphasis added by the applicant.]

58    The applicant submits that there is a clear demarcation between mental illness and a psychiatric injury: mental illness is assumed to be inherent (internal), whereas psychiatric injury is caused by external factors, such as, in this case, the alleged bullying.

59    No medical evidence or literature was tendered by the applicant specifically directed to such a distinction. It is difficult to see that a recognised psychiatric illness would not always involve some degree of impairment to a person’s mental condition. Certainly the medical evidence was that his psychiatric illness was a “major depressive episode” manifesting in suicidal thoughts, anxiety and panic attacks. Impairment of mental condition is a phrase of wide import and is sufficiently wide to embrace the recognised psychiatric illness diagnosed in respect of the applicant, namely a major depressive episode. The applicant’s claim is therefore one for loss or damage for personal injury.

60    Accordingly, I am satisfied that to the extent that the applicant claims damages for personal injury for breach of the TPA these claims ought be summarily dismissed. Obviously, the applicant has no reasonable prospect of prosecuting such claims where the Court is barred from making any compensation order in respect of the alleged personal injury.

The separate question

61    The separate question is whether the Court can award the applicant damages in tort or contract in respect of mental or physical injury allegedly suffered by the applicant.

62    As I mentioned, on 20 May 2014, I ordered the trial of the separate question to be heard at the same time as the respondent’s amended interlocutory application.

63    The respondent seeks a determination of the separate question that by reason of s 93K(4) of the Compensation Act the Court is not able to award damages in tort or contract in respect of mental or physical injury allegedly suffered by the applicant. If it were determined in favour of the respondent this would, having regard to my earlier conclusions regarding the TPA, effectively resolve the central proceeding which could then be dismissed in its entirety.

64    The balance of the applicant's claims in the Proceeding are for common law damages for mental and physical injury, based in actions for breach of his employment agreement. On one view, whilst negligence is pleaded in his statement of claim, this seems to be referrable to a plea of breach of the employment agreement through carelessness or negligence. Arguably, it is not a distinct tortious claim.

65    However, I am prepared to treat it as such a distinct plea. The respondent appears to have done so. In the present context nothing turns on this.

66    The statement of claim does not seek exemplary damages. The applicant cannot claim in his application for summary judgment more than he seeks by way of relief in his statement of claim. An originating application claiming relief by way of exemplary damages must state the details of that claim: r 8.03(2) FCR. The applicant’s originating application does not seek such relief. The applicant’s reliance on FCR r 16.44(1) is misconceived. However, r 16.44(2) is relevant. This provides that if a party claims exemplary damages the pleading must also state particulars of the facts on which the claim is based. The statement of claim contains no such particulars.

67    The applicant made a submission that the Compensation Act has no application in this case. He submits that the applicant's statement of claim is based on the TPA and is independent of the Compensation Act and that to the extent that relevant provisions under the Compensation Act and the TPA are inconsistent the TPA, as Commonwealth legislation, prevails.

68    The applicant submits that relevant inconsistency arises because the TPA has no requirements for an election to seek damages whereas claims under the Compensation Act do.

69    The applicant contends that in these circumstances the issue of election to seek damages under s 93K, a law of a State, is irrelevant to these proceedings. Curiously he submitted that the entire claim is based on the TPA, a law of the Commonwealth, which is independent of the Compensation Act and that consequently, the requirements of the Compensation Act are invalid.

70    As I have already explained the applicant’s TPA claims are but one aspect of his overall claims which seek damages for personal injury arising from negligence in contract and tort.

71    There is no inconsistency between the two Acts. What is determinative of claims for damages for personal injuries for breach provisions within Div 1 of Pt V of the TPA is that TPA s 82(1AAA), as I have stated above, precludes the Court from making an order under s 82(1) for compensation for loss or damage which is or results from personal injury.

72    The applicant’s submissions in this regard are without substance.

73    It is not in dispute that, having commenced the Proceeding on 27 August 2012, the applicant first made a claim under the Compensation Act on 5 December 2012 and made an election received by the Director, Conciliation (Director) on 20 February 2013 and that the Director notified the applicant that she had registered his election on 25 February 2013.

74    The Court's ability to award the applicant common law damages for mental or physical injury is affected by Part IV, Div 2 of the Compensation Act, entitled “Constraints on awards of common law damages”.

75    Section 93B(1) of the Compensation Act provides that Div 2 of Part IV applies to the awarding of damages against a worker's employer independently of the Compensation Act in respect of an "injury" suffered by the worker if:

(a)    it was caused by the negligence or other tort of the worker's employer; and

(b)    compensation has been paid or is payable in respect of it under this Act, or would have been paid or be payable but for section 22.

76    The term "injury" is defined in s 5 of the Compensation Act and includes:

a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree.

77    The term "disease" is in turn defined in s 5 to include:

any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development.

78    Section 93B(2) provides that Div 2 of Part IV applies:    

even if the damages resulting from the negligence or other tort of the worker's employer are sought to be recovered in an action for breach of contract or other action.

79    Section 93B(3) relevantly provides that Div 2 does not apply to the awarding of exemplary or punitive damages. As I have explained no admissible claim for exemplary or punitive damages has been made or pleaded: rr 8.03(2) and 16.44(2) FCR.

80    Section 93C of the Compensation Act provides that if Div 2 of Part IV applies a court is not to award damages to a person contrary to the Division.

81    Until 1 October 2011, s 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%. (Emphasis added.)

82    Section 93K(4)(c) was amended by s 96 of the Workers’ Compensation and Injury Management Amendment Act 2011 (WA) with effect from 1 October 2011 and since that date has provided:

(c)    court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election.

83    The difference is that the words “within” and “the period of 30 days” in s 93K(4)(c)(i) and the whole of s 93K(4)(c)(ii) have been omitted.

84    At all material times reg 22 of the Workers’ Compensation and Injury Management Regulations 1982 (WA) provided 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 I and lodging it with the Director.

(2)    Unless under subregulation (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.

85    The applicant claims to have suffered mental and physical injury as a result of bullying and harassment, caused by negligence in contract and tort, by the respondent's employees. It is common ground that such an injury would be one in respect of which compensation is payable under the Compensation Act.

86    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 (which is a self-insurer) under the Compensation Act and the applicant has been paid compensation up to the “Prescribed Amount”.

87    The criteria found in s 93B(1) and (2) of the Compensation Act are alleged to be made out. Accordingly, if made out, Div 2 of Part IV of the Compensation Act will apply to the awarding of damages against the respondent independently of the Compensation Act in respect of an injury suffered by the applicant if it was caused by the respondent's negligence or other tort. Further, Div 2 applies even if the damages resulting from the respondent's negligence or other tort are sought to be recovered in an action for breach of contract or other action.

88    As such, ss 93C and 93K(4) will apply to prevent the Court awarding common law damages for an injury as defined in the Compensation Act unless the requirements of s 93K(4) are met.

89    The respondent contends that regardless of whether the Compensation Act as in force before or after 1 October 2011 is found to apply to the applicant, the requirements of s 93K(4)(c) have not been met because in each case the section required the applicant to make an election and to have that election registered before commencing the Proceeding.

Which version of the Compensation Act applies?

90    The applicant has pleaded in his statement of claim that he was on sick leave from 11 April 2011: at [27] and [42]. He has claimed in his WorkCover application that his injury occurred on 13 April 2011. He has also annexed medical reports to his affidavits (including his most recent affidavit affirmed 2 June 2014 at Annexure “HZ-2”) indicating that he visited a clinical psychologist, Jenny Ellison, in the period April to August 2011 and was then diagnosed by her as having an adjustment disorder with major depressive symptoms. It appears that he continued to see Ms Ellison until May 2012.

91    If, as the applicant claims, he was injured on 13 April 2011, then by reason of s 37(1)(c) of the Interpretation Act 1984 (WA), he had 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: Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 per Steytler P at [10]-[35] (McClure J agreeing) and Pullin JA at [75]-[85], particularly at [32]-[33] and [77]-[78].

92    The respondent submits that the right which the applicant had prior to 1 October 2011 was merely a contingent right to claim common law damages in accordance with and subject to the Compensation Act as in force from time to time and that because the applicant did not take any steps to avail himself of that right prior to 1 October 2011 (the applicant did not make his workers' compensation claim until 5 December 2012 ) his claim is to be dealt with in accordance with and subject to the Compensation Act as in force after 1 October 2011. However the respondent accepts that argument was rejected by the Court of Appeal in Barminco. I would follow Barminco.

93    Accordingly, the applicant’s claim falls to be considered in accordance with the Compensation Act as in force prior to 1 October 2011.

94    However, the respondent must satisfy the Court that the majority decision of the Court of Appeal of the Supreme Court of Western Australia in St John of God Health Care Inc v Austin (2014) 46 WAR 208 is “plainly wrong”. Murphy JA, whilst agreeing with Pullin JA, did not provide separate reasons. Newnes JA dissented.

Compensation Act as in force before 1 October 2011

95    The decision in Austin considered the effect of s 93K(4)(c) of the Compensation Act as in force prior to 1 October 2011.

96    As stated, prior to 1 October 2011, s 93K(4)(c) of the Compensation Act relevantly provided:

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

. . .

(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; . . .

97    In Austin the respondent had commenced the proceedings without making an election.

98    The Court of Appeal held, by a majority, that the word "within" in the section meant “before the end of” or “no later than”, so that provided a worker commenced proceedings no later than 30 days after the Director gave notice the section would have been complied with.

99    The majority did not consider the section required the proceedings to be commenced during the 30 day period after the Director gave notice. The proceedings could be commenced before the Director gave the worker written notice.

100    As stated, the applicant commenced the Proceeding on 27 August 2012 but did not make a claim under the Compensation Act until 5 December 2012. The applicant then made an election which was received on 20 February 2013 and the Director notified the applicant that she had registered his election on 25 February 2013.

101    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 s 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.

102    However, the respondent submits 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.

103    It is well established that a court, especially where constituted by a single judge, should only depart from a decision of another Australian intermediate appellate court where the court is convinced that the decision of the other court is plainly wrong: CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 at [51], [63]; S v Boulton (2006) 151 FCR 364 at [21]-[22], [25]-[27] per Black CJ.

104    The respondent submits that the majority decision in Austin is plainly wrong.

Consideration

105    I find the following submissions of the respondent persuasive.

106    The language and sequential structure of s 93K(4) and most of all the requirement that the proceedings be commenced within “the period” of 30 days after the worker is given notice of registration of the election make clear that the proceeding has to be commenced after the notice was given but not later than 30 days after it is given.

107    Even accepting that “within” is capable of meaning “before the end of” or “no later than”, the construction adopted by the majority in Austin renders the words “the period of” superfluous. A court construing a statutory provision must strive to give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.

108    The ordinary meaning of the words, read in context, is confirmed by the scheme of the Compensation Act and the policy considerations discussed by Newnes JA, to which I will shortly turn, as well as by the Minister's Second Reading Speech set out in part by his Honour at [34].

109    I do not regard the majority decision in Austin as correct and in so doing respectfully adopt the analysis of Newnes JA and in particular the following paragraphs:

[25] Section 93K was introduced as part of wide-ranging amendments to the Act made by the Workers’ Compensation Reform Act 2004 (WA). They included a number of amendments to the provisions of the Act relating to restrictions on the awarding of damages for personal injury. As this Court observed in Thomas Peacock [& Sons Pty Ltd v Abreu [2013] WASCA 19], the evident purpose of those amendments was to deter small, disproportionately costly, claims for damages being brought in respect of workplace accidents (at [30]).

[26] The relevant provisions of the Act are as follows:

93C Limit on power of courts to award damages

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

93K Constraints on awards

…

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

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

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

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

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

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

and

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

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

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

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

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

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

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

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

[34] That construction is consistent too with the Minister’s Second Reading Speech on the Workers’ Compensation Reform Act, 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.

    . . .

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

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

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

110    Newnes JA expressed his reasons in strong terms when he said at [33]:

… 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. (Emphasis added.)

111    In my opinion, the purpose of the provisions in s 93K is not merely to ensure the promptitude of the commencement of proceedings but also that proceedings should not be instituted until certain events have taken place, namely the making of the election to retain the right to seek damages; the registration of the election by the Director and the Director giving the worker notice that the Director has registered the election. And further, pursuant to s 93L, the election under s 93K(4) can only be made relevantly where the worker’s degree of permanent whole of person impairment is agreed at being at least 15% or has been assessed to be a percentage that is not less than 15%.

112    Thus, there is a logical and stepped series of events which, if met in succession, lead to the commencement of court proceedings seeking damages “within the period of 30 days” after the Director gives the worker written notice that the Director has registered the election.

113    Nonetheless it is important to keep in mind that the majority in Austin relied upon a long line of authority emanating from the United Kingdom as followed and developed in Australia.

114    Perhaps the leading authority in terms of a general approach to such questions of statutory construction is the decision of the Inner House of the Court of Session of Scotland in Earl of Morton’s Trustees v Macdougall [1944] SC 410. This was relied upon by the majority in Austin at [9] and has been followed in most cases involving similar questions since: Ward v Walton (1989) 99 FLR 21 at 25-26; Evalena Pty Ltd v Rising Sun Holdings Pty Ltd [2003] NSWSC 622 at [163]; Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 at 580.

115    Judicial opinion has not been uniform. In Earl of Morton’s Trustees, whilst he did not dissent, Lord Mackay doubted the correctness of the decision. Ward v Walton was a majority decision, as was Austin.

116    For my part Austin can be distinguished from Earl of Morton’s Trustees and those cases which followed it because s 93K(4)(c) does not employ the words “within a month after” or “within 30 days of” the Director giving written notice to the worker. It contains, as the respondent has emphasised, the additional words “the period of” before the phrase “30 days after”. It seems to me that the definite article before the words “period of 30 days after” is identifying a time during which court proceedings are to be commenced and not an end time, that is, “no later than” 30 days after.

117    This is not mere semantics. It is to observe the general principles of statutory construction referred to above.

118    Significantly, in this context, Lord Justice-Clerk Cooper in Earl of Morton’s Trustees at 413 observed that the words under consideration in that case were “within one month” and not “within the month” (emphasis added). It is apparent that if the words used had been “within the month” that the case may well have been decided in favour of the landlords.

119    That distinction was noted by Asche CJ in Ward v Walton at 25. His Honour’s note of this was in turn referred to by Rothman J in Dowsley v Westpac Life Insurance Services Ltd [2013] NSWSC 1208 at [52]. The distinction was also adverted to by the Full Court of the Family Court in T v T (2008) 216 FLR 365 at [41].

120    Accordingly, subject to what follows, for the reasons expressed by Newnes JA and my own further reasons, I am of the opinion that in accordance with the Compensation Act as in force at the time that he sustained his injury, s 93K(4)(c) of the Act required the applicant to make an election, then to have that election registered and the Director to give notice, before the applicant commenced proceedings within the 30 day period after the notice was given in order for the Court to be able to award common law damages for personal injury (other than exemplary or punitive damages).

121    Accordingly, but again subject to what follows, I am of the opinion that the Court is not able to award the damages which the applicant claims in tort or contract in respect of any mental or physical injury suffered by him.

122    However, I am not prepared to conclude that the majority judgment in Austin is plainly wrong. It is a matter upon which minds might 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 concerned 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.

Orders

124    Accordingly, for these reasons I will make orders that:

(1)    The applicant’s interlocutory application dated 24 March 2014 be dismissed.

(2)    The applicant’s claims for damages for personal injury under s 82(1) of the Trade Practices Act 1974 (Cth) be dismissed.

(3)    Otherwise, the respondent’s amended interlocutory application dated 9 May 2014 be dismissed.

(4)    The separate question of whether the Court can award damages in tort or contract in respect of mental or physical injury allegedly suffered by the applicant, ordered, on 20 May 2014, to be tried, be answered in the affirmative.

Associate:

Dated:    26 September 2014