Grogan v Commonwealth of Australia
[1996] QDC 129
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- Unreported Judgment
- Grogan v Commonwealth of Australia[1996] QDC 129
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Grogan v Commonwealth of Australia[1996] QDC 129
Grogan v Commonwealth of Australia[1996] QDC 129
DISTRICT COURT | Plaint No 1235 of 1994 |
CHAMBERS
JUDGE McMURDO
GLORIA CHARLOTTE GROGAN | Plaintiff |
and
COMMONWEALTH OF AUSTRALIA | Defendant |
and
W B K PTY LTD | Third Party |
BRISBANE
DATE 05/06/96
JUDGMENT
HER HONOUR: The plaintiff/respondent has brought an action in negligence and/or breach of contract and/or breach of statutory duty against the defendant, the Commonwealth of Australia, who was, at the relevant time, 21 June 1991, her employer.
The settled plaint was signed by the plaintiff's solicitor on her behalf on or about 14 June 1994, filed on 14 June 1994 and served on the defendant on 15 June 1994. A letter posted on 15 June 1994 to Comcare Australia gave notice to the defendant of that election.
The defendant issued third party proceedings against the lessor of the premises where the plaintiff was injured. The defendant and third party have brought similar applications pursuant to rule 231A of the District Court Rules for a separate determination of the question whether the plaintiff has failed to comply with section 45 of the Safety Rehabilitation and Compensation Act 1988 (the Act). If the plaintiff has not complied with section 45 of the Act she has no action: Georgiadis v. Australian and Overseas Telecommunications Corporation (1993-4) 179 CLR 297.
It is appropriate that that question be determined by me now pursuant to rule 231A.
The relevant provisions, sections 44, 45 and 47 of the Act state:
“Action for damages not to lie against Commonwealth etc. in certain cases
44.(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation of an employee in respect of:
- (a)an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
- (b)the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.
Actions for damages - election by employees
45.(1) Where:
- (a)compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
- (b)the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.
(2) Where an employee makes an election:
- (a)subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and
- (b)compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.
(3) An election is irrevocable.
(4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee.
...
Notice of proceedings against Commonwealth
47. Where:
- (a)compensation is payable under this Act in respect of the death of an employee or an injury to an employee; and
- (b)the employee, or a dependant of the deceased employee, as the case may be, institutes proceedings against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee for the recovery of damages in respect of death or injury;
the employee or dependant shall, as soon as practicable but in any event not later than 7 days after the day on which he or she first became aware that those proceedings had been instituted, notify Comcare in writing of those proceedings.
Penalty: $500.”
The applicants submit that section 45 requires that a written notice of election must be made and given to the Commonwealth prior to the institution of proceedings. As none was, section 45 has not been complied with and section 44 removes any right to bring this action against the defendant.
This argument receives some support from the use of the word “subsequently” in section 45(2)(a) and the words “in any action or proceeding instituted as a result of an election made by an employee...” (My underlining).
The applicant's argument is further supported by the words of Williams J in Re Baker Johnson's Bill of Costs [1995] 2 Qd.R. 234 at 237. However, His Honour's comments were made in the context of a review of a decision of the taxing officer where solicitors had not given the Commonwealth notice of the election until 10 months after the issuing of proceedings. The relevance of section 47 was not therefore considered. In my view, that case can be distinguished on its facts from the present case and His Honour's comments must be viewed in that context.
The applicants' argument is also supported by the unreported decision of His Honour Judge Villeneuve-Smith in O'Reilly v. Reserve Bank of Australia County Court of Victoria, delivered 18 August 1989. Again, no notice had been given pursuant to section 47 of the Act and that section was not considered. That case too can be distinguished on its facts and is of persuasive value only.
What, then, is the meaning of section 45 as it applies to the facts of this case. Section 45 does not use the terms “notice” or “notice of election”, nor does it provide any assistance as to how or even if the employee is to communicate the election to the Commonwealth. Section 45 is contained within Part IV of the Act, (Liabilities arising apart from this Act). The only section dealing with notice of proceedings against the Commonwealth in Part IV is section 47 with which the respondent plaintiff has complied by its letter to Comcare of 15 June 1994, the day after issuing proceedings.
In Janssen v. The Commonwealth of Australia [1994] 2 Qd.R. 596 Fitzgerald P and Pincus JA, McPherson JA concurring, when deciding a different point of statutory interpretation of section 45, commented at 601-2:
“ The object of the statute is to enable Commonwealth employees to obtain compensation for work-related injuries without the necessity of suing and proving negligence or breach of statutory duty...
Apart from that it has to be said in our opinion that the result arrived at if the appellant's construction is accepted borders upon absurdity. It is at least highly unreasonable. These days there may be a greater tendency than was once apparent to apply reasoning of the kind exemplified by that of Lord Keith of Kinkel in Debenhams PLC v. Westminster City Council [1987] 1 AC 396 at 403:
‘In resolving a statutory ambiguity that meaning which produces an unreasonable result is to be rejected in favour of that which does not, it being presumed that Parliament did not intend to produce such a result.’
Then there are presumptions which one must apply in interpreting statutes which assist the respondent. Particularly clear language is ordinarily required to deprive a citizen of access to the Courts. That has been described as a ‘principle not by any means to be whittled down’ : Pyx Granite Co Ltd v. Minister of Housing and Local Government [1960] AC 260 at 286.”
In McEwan v. Gold Coast City Council [1987] 1 Qd.R. 337 Ryan J commented at 343:
“In my judgment it is a wrong process of interpretation to insert in a statutory provision words which are not expressed unless this is necessary to give it meaning and effect.
‘Words plainly should not be added by implication into a statute unless it is necessary to do so to give the language sense and a meaning in its context.’
Tinkham v. Perry [1951] 1 KB 547, 549 per Evershed MR.”
Section 45(1) allows an employee to elect in writing to commence an action against the Commonwealth before compensation is paid under section 24, 25 or 27 of the Act. An election can be made by pleadings in an action, see Nicholas v. Thompson [1924] V.L.R. 554 at 582 where McArthur J held that the issue and service of a writ specifying relevant matters was an election to avoid the contract and it was unnecessary to prove any prior election to disaffirm.
“Election” in the context of section 45 means the choice between pursuing the common law right to damages or the statutory right to compensation. In Sargent v. ASL Developments Ltd (1974) 131 CLR 634 Stevens J said at 646:
“The words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other.”
The plaint in this case is a clear election to pursue common law rights to damages.
The words “notice” or “notice of election” are not in the section. Particularly clear language is required to deprive a citizen of access to the Courts. Section 47 deals with notice to the Commonwealth in this Part of the Act.
The respondent/plaintiff elected in writing to institute an action within the meaning of section 45(1) when her solicitor signed the settled plaint on her behalf on or about 14 June 1994. The proceedings were subsequently instituted by the filing and serving of the plaint. It is implicit in section 45 that the election must be communicated to the Commonwealth; that the Commonwealth be given notice. But section 45 is silent as to how that is to be done. In my view, its clear words do not require notice to be given to the Commonwealth prior to the institution of proceedings. It is necessary to look to section 47 for the procedure to be followed as to notice. Notice must be given within seven days of the employee becoming aware of the institution of proceedings.
The respondent/plaintiff has given that notice.
Such an interpretation of section 45 is consistent with the words of that section and that Part of the Act and is in accordance with the object of the statute. Such interpretation is preferable to adding words by implication to the statute. The Commonwealth cannot be said to suffer detriment from this interpretation. The Commonwealth has always had timely notice of the plaintiff's written election as required by section 47.
I therefore dismiss the summons of the third party filed on 17 May 1996 and the summons of the defendant filed on 24 May 1996.
...
HER HONOUR: I give judgment for the plaintiff against the defendant in respect of paragraph 6(i) of the entry of appearance and defence.
I give judgment for the defendant against the third party in respect of paragraph 8 of the third party notice as far as that relies on 6(i) of the entry of appearance and defence.
...
HER HONOUR: I order the third party pay the plaintiff's costs associated with its summons and the defendant pay the plaintiff's costs associated with its summons to be taxed.