Neuss v Roche Bros Proprietary Limited
[1999] QDC 249
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- Unreported Judgment
- Neuss v Roche Bros Proprietary Limited[1999] QDC 249
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Neuss v Roche Bros Proprietary Limited[1999] QDC 249
Neuss v Roche Bros Proprietary Limited[1999] QDC 249
DISTRICT COURT | No 2133 of 1998 |
CIVIL JURISDICTION
JUDGE FORDE
PAUL JOSEPH NEUSS | Plaintiff |
and
ROCHE BROS PROPRIETARY LIMITED (ACN 004 142 223) | Defendant |
BRISBANE
DATE 24/09/99
JUDGMENT
HIS HONOUR: The orders will be:
- 1.The amendment to paragraph 5AA of the further amended entry of appearance is disallowed.
- 2.The application to strike out action D2133 of 1998 is refused.
- 3.The applicant is given leave to amend the statement of claim in terms of Exhibit G in these proceedings.
- 4.That action D2133 of 1998 be consolidated with D2946 of 1999.
- 5.That the respondent do pay the applicant's costs of and 30 incidental to all three applications to be assessed.
The reasons will be published later. There are some corrections to be made.
MR BICKFORD: Before Your Honour adjourns, Your Honour will have to do something with the actions because they were on the callover list.
...
HIS HONOUR: Well, the order has to be taken out so if you just add something, I'll initial it in due course.
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No D2133 of 1998 |
[Before JUDGE FORDE DCJ]
[Paul Joseph Neuss v Roche Bros. Pty Ltd]
BETWEEN:
PAUL JOSEPH NEUSS | Plaintiff |
AND:
ROCHE BROS. PTY LTD | Defendant |
JUDGMENT - FORDE D.C.J.
Judgment delivered: | 24 September 1999 |
Catchwords: | Civil Procedure – Application to strike out action – Sections 182A, 182B, 182D Workers' Compensation Act 1990, s. 39(5) Motor Accident Insurance Act 1994, Rules 149, 153(2), 375, 376, 379(1) UCPR, 022 r 12,14 Supreme Court Rules, r 94 & r 104 District Court Rules – Mears v Coles Myer Ltd (1999) QSC 194; State of Queensland v Multiplex Constructions Pty Ltd (unreported Court of Appeal No. 1863/97 dated 19/12/97); General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125; Young v Keong (unreported Court of Appeal dated 22 May 1998); Beesly v Hollywood Estate Ltd (1960) 2 All ER 314; Salmon Nominees Pty Ltd v Moneywood Pty Ltd (unreported Court of Appeal 4852/98 dated 22/12/98; Day Ford Pty Ltd v. Sciacca [1990] 2 Qd R 209; Hardacre v Jenson and Suncorp General Insurance (unreported Forde DCJ 22/1/98); Airservices Australia v Anstral Pacific Group Ltd (1998) 157 ALR 125; David Grant and Co Ltd v Westpac Banking Inc (1994-1995) 184 CLR 265; The Commonwealth v Verwayen (1990) 170 CLR 394; Adam v Chas S Watson Pty Ltd (1938) 60 CLR 545; Maxwell v Murphy (1956-1957) CLR 261; Tildesley v Harper (1878) 10 Ch D 393; Graham v Ingleby 154 ER 277, 1 Ex 651; Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471; Broad v Perkins (1888) 21 QBD 533; Moore v Gamgee (1890) 25 QBD 244; Toronto Corporation v Russell (1908) AC 493; Bock v Don-Rex Furniture (Qld) (1891) Qd R 326; Allonnor Ltd v Doran (Court of Appeal 5210/98 dated 17 November 1998); Kayrasaridas v Kastoria Fur Products (1984) SASR 345; Swietlik v Cental Linen Service (1991) 56 SASR 569; Fitzpatrick v Jackson (1989) 2 QdR 542; Re Testro Bros. Consolidated Ltd [1965] VR 18; Craig v Kanssen (1943) 1 KB 256; Cockburn v Hyne and Son Pty Ltd (Plaint 17/99, dated 15 September 1999); Woods v Bate (1987) 7 NSWLR 560; Hatton v Beaumount [1977] 2 NSWLR 211, [1978] 52 ALJR 589; Wilkie v Doce Pty Ltd (unrep, D2137 of 1997, 17th September 1997); Coote v Gas Corporation (unrep, D429 of 1998, 7th May 1998); Short v Michaliczac & Ors (unrep, D3951 of 1997), 22nd May 1998); Herman v Buzza (unrep, D456 of 1997, 12th September 1998); Sheward v Toowoomba City Council & Ano (unrep, D56 of 1997, 15th December 1998); McKelvie v page and Ors (BC 9804722 writ 6801/98, unrep 18 September 1998); Emanuele v ASC (1996-97) 188 CLR 114; Park Gate Iron Co v Coates (1870) LR 5 CP 634; Thorby v Goldberg (1964) 112 CLR 597; Scoles v Commissioner for Government Transport (1960) 104 CLR 339; Harding v Lithgow Corporation (1937) 57 CLR 186; Posner v Collector for Inter-State Destitute Persons (Vict) (1946) 74 CLR 46; In re Affairs of Hart [1943] LT 60; Cerlic v CE Health Underwriting & Insurance (Aust) Pty Ltd (1994) NTLR 135 considered. |
Counsel: | Mr R Douglas SC, with him Mr P Bickford for the Plaintiff Mr W Campbell for the Defendant |
Solicitors: | Sciacca's Lawyears and Consultants for the Plaintiff Bain Gasteen for the Defendant |
Hearing Date(s): | 2 August and 13 September 1999 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No D2133 of 1998 |
BETWEEN:
PAUL JOSEPH NEUSS | Plaintiff |
AND:
ROCHE BROS. PTY LTD | Defendant |
REASONS FOR JUDGMENT - JUDGE FORDE DCJ
Delivered the 24th Day, of September 1999
Introduction
- [1]In this action, the applicant plaintiff was at all material times employed by the defendant, Roche Bros Pty Ltd as a truck driver. In the original Statement of Claim filed on 9 March 1998, the plaintiff alleges that he injured his back in June 1996. In the proposed pleading the plaintiff alleges that he was employed by the defendant from June, 1994 driving trucks. The plaintiff further alleges that he started to suffer symptoms to his back in or about November, 1995. It is alleged that the plaintiff suffered a prolapsed disc in 1996. These matters are pleaded in Exhibit “G”, the proposed Amended Statement of Claim.
- [2]There are presently three applications before the court. For practical reasons they are listed as follows:
- (1)The applicant plaintiff seeks to disallow an amendment to the Further Entry of Appearance and Defence in particular paragraph 5AA made on 10 June 1999.
- (2)An application to consolidate action D2133 of 1998 with D2946 of 1999 and that the applicant plaintiff have leave to deliver an amended Statement of Claim in terms of Exhibit “G” in these proceedings.
- (3)An application on the part of the respondent defendant that pursuant to rule 293 of the Uniform Civil Procedure Rules that the Action 2133 of 1998 be struck out on the basis that the plaintiff has failed to comply with S. 182D of the Workers Compensation Act 1990 (“WCA”) in that a certificate was not obtained prior to the proceedings being commenced. The alternative claim is under Rule 483 that the following question be decided in advance to the trial: “do the facts alleged in paragraph 5AA of the Further Amended Defence of the defendant amount to a good defence to all or part of the plaintiff's claim?” In that event, an order is sought that the action be dismissed.
- [3]It was conceded by the applicant that if the respondent succeeds in its application then there is no point in granting leave to amend the applicant's Statement of Claim or consolidating the actions. In the latter respect, the amended Statement of Claim seeks to avoid the consequences of S. 182D of the Act by alleging that the plaintiff had suffered an injury prior to 31 December 1995. The applicant relies upon Exhibit G as being the relevant pleading. Although it has No.5494 of 1997 on it, that was the writ number and not the plaint number which is 2133 of 1998. In Action 2946 of 1999, the plaintiff did obtain a conditional certificate prior to the issue of the proceedings which commenced on 21 July 1999. Obviously, the Limitation of Actions Act may apply to that action as the symptoms in that respect commenced prior to 21 July 1996. The necessity to consolidate 2946 of 1999 with 2133 of 1998 will only arise if the respondent is unsuccessful in striking out 2133 of 1998.
Nature of Legislation
- [4]The claim in 2946 of 1999 is Exhibit F in these proceedings. Exhibit G is the proposed amendment in 2133 of 1998.
- [5]A detailed discussion of the WCA and the 1995 Amendments thereto can be found in Mears v Coles Myer Ltd (1999) QSC 194, an unreported decision of Shepherdson J given on 18 August 1999. For present purposes, it is necessary only to refer to the provisions of s. 182D:
- “(1)A worker who has not received an offer of lump sum compensation under section 132 may seek damages at law for an injury suffered after the commencement only if the board gives to the worker a certificate under this section.
- (2)The worker must apply in the approved form to the board for a certificate.
- (3)The board may only, and must, give the certificate if—
- (a)the board decides the injury is an injury within the meaning of this Act and was suffered after the commencement; and
- (b)the degree of the worker's permanent impairment resulting from the injury has been assessed in the way mentioned for the injury under section 130A(1).
- (4)However, the board may issue the worker with a conditional certificate if—
- (a)the degree of the worker's permanent impairment is not agreed or has not been decided by a tribunal; or
- (b)there is an urgent need to bring proceedings for damages.
- (5)If a conditional certificate is given, the worker may start proceedings at law for damages for the injury, but the proceedings are stayed until the board makes the certificate unconditional.
- (6)The board must make the certificate unconditional when it is satisfied about the matters mentioned in subsection (3).”
It is common ground in the present case that prior to the commencement of Action 2133 of 1998 on 20 June 1997:
- (a)there was no offer of lump sum compensation under s. 132 made by the Board to the plaintiff in respect of the June 1996 injury;
- (b)there was no decision by the Board that the plaintiff's June 1996 injury was “a certificate” injury and thereby a “serious” injury within the meaning of the Act (s. 182A(2));
- (c)there is no certificate issued by the Board under s. 182(D)(1), nor any conditional certificate under s. 182D(5).
Workcover became the successor in law to the Board on 5th December, 1997. For convenience the Board is referred to throughout.
- [7]Action 2133 is based upon an incident or incidents which were alleged to have occurred in or about June 1996 and which were alleged to produce an injury to a lumbar disc. The amendment to the defence which it is sought to have disallowed reads as follows:
“5AA. Further and alternatively the Defendant says in relation to the claim made in paragraph 10 of the Statement of Claim:—
- (a)the Plaintiff has not obtained an offer of lump sum compensation or a damages certificate and accordingly pursuant to S. 182D of the Workers' Compensation Act 1990 the claim made in that paragraph in respect of the incident alleged to have occurred in or about June 1996 is incompetent.”
- [8]It is common ground on this hearing that this question be determined as a preliminary point and the original trial was adjourned for that purpose. It is desirable in principle for suitable questions to be decided summarily: State of Queensland v Multiplex Constructions Pty Ltd (Appeal 1863/97, Court of Appeal, 19/12/97, unreported).
- [9]The respondent's submission is that pursuant to s. 182D(1) if no certificate issues prior to action, failure to obtain same is fatal to the action and that the action is a nullity: See for example Fitzpatrick v Jackson (1989) 2 Qd R 542. The plaintiff, a prisoner, failed to get the consent of the Public Trustee to commence an action. It was held that the issuing of the writ was a nullity as the Public Trustee Act (s. 95) provided that “a prisoner shall be incapable” of suing in those circumstances. Section 182D(1) was inserted by the Workers' Compensation Amendment Act No.2) 1995 and commenced on 1 January 1996. The following cases are cited in argument in support of the respondent's position that the action ought to be struck out:
“Wilkie v Doce Pty Ltd (unrep, Brisbane Plaint No 2137 of 1997, 17th September 1997, McGill DCJ); Coote v Gas Corporation, (unrep, Brisbane Plaint 429 of 1998, 7th May 1998, McGill DCJ); Short v Michallczac & Ors (unrep, Brisbane Plaint No 3951 of 1997, 22nd May 1998, McMurdo DCJ); Herman v Buzza (unrep, Brisbane Plaint No 456 of 1997, 12th September 1998, Wylie DCJ); Sheward v Toowoomba City Council & Ano (unrep, Toowoomba Plaint No 56 of 1997, 15th December 1998, McGill DCJ).”
In none of these cases was the question of waiver argued.
Significance of Measrs v Coles Myer Ltd (1999) QSC 194
- [10]In argument, reference is made to the decision of Mears op.cit. The following discussion in that case is relevant here:
- (1)the courts power to terminate summarily an action whether the power be exercised in the court's inherent jurisdiction or pursuant to a rule of court must be exercised with “great care to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal”. (per Barwick CJ in General Steel Industries Inc. v Commissioner for Railways NSW (1964) 112 CLR 125 at 130 as cited and applied by Shepherdson J at p. 62)
- (2)s. 182D(1) says the worker “may seek damages at law... only if the Board gives to the worker a certificate”. This is to be compared with s. 39(5) of the Motor Accident Insurance Act 1994 which reads:
“A claimant may bring a proceeding in a court for damages based on a motor vehicle accident claim only if —
- (a)The claimant has given notice to the insurer...”.
- (3)The phrase “seek damages at law for an injury” may mean “to commence”, “to bring” or “to start proceedings at law for damages” but commencing an action is not an essential prerequisite for seeking damages in all cases within S. 182D: s. 182B(6): See Mears p. 13.
- (4)In terms of s. 182D(1) the plaintiff in that case could only commence proceedings at law for damages if the Board gave him a certificate under S. 182D. The obtaining of such a certificate was an essential prerequisite to the issue of the writ: Mears p. 16 paragraph 91.
- (5)Once that stage is reached, Shepherdson J held that the decision of Young v Keong (unreported Court of Appeal dated 22 May 1998) is applicable and binding on him.
- [11]Following His Honour's reasoning and also the decision in Young v Keong, I hold that the terms of s. 182D(1) are mandatory and legal proceedings should not be commenced when the Board has not given the plaintiff a certificate under s. 182D(1). Therefore, the applicant's remedy is curtailed and the action would fail once the point is taken subject to the waiver issue raised by counsel for the plaintiff.
Estoppel & Waiver
- [12]It was held by Shepherdson J in Mears case that estoppel was not open as it “cannot be invoked to negative the operation of a statute”: Beesly v Hollywood Estate Ltd (1960) 2 All ER 314 at 324; per Buckley J affirmed on an appeal (1961) 1 All ER 90; 1961 (Ch 105); see also “Estoppel by Misrepresentation (Spencer Bower and Turner) (3rd edition) by Turner paragraph 141; Salamon Nominees Pty Ltd v Moneywood Pty Ltd BC 9807212 Supreme Court of Queensland, Court of Appeal No.4852 of 1998, unreported decision given on 22 December 1998, Chesterman J at p. 10 paragraph 45 - 46. Chesterman J with whom de Jersey CJ agreed, relied upon the earlier Queensland decision of Day Ford Pty Ltd v Sciacca (1990) 2 QdR 209 at 216. I apply that line of authority.
- [13]However in the present case, counsel for the plaintiff relies upon the doctrine of waiver. This will be discussed later in these reasons.
Extension of Time Periods
- [14]Under the Workers' Compensation Act as amended, there is no provision for a court to remedy any failure to comply with s. 182D(1). Under the Motor Accident Insurance Act 1994, leave may be given nunc pro tunc: see Hardacre v Jensen and Suncorp General Insurance Ltd 5102/97, unreported decision of Forde DCJ dated 22 January 1998; McKelvie v Page and Ors, BC 9804722 writ 6801/98 an unreported decision of Wilson J, judgment delivered 18 September 1998. Her Honour commented that the s. 37(1) and s. 39(5) of the Motor Accident Insurance Act were held in Young v Keong to be mandatory in nature, but for the purposes of private international law the giving of notice is a procedural requirement. The failure to give a notice did not bar the claim. The approach taken in Young v Keong seems apposite to the present case.
- [15]In David Grant and Co Ltd v Westpac Banking Coloration (1994-1995) 184 CLR 265 at 277, the meaning of the term “may only” within the meaning of S. 459G of the Corporations Law was discussed by the High Court. That section required that an application to set aside a statutory demand “may only” be made within 21 days after the service of the demands. Although there was provision under that Act to allow the courts to extend periods for the doing of any act, the High Court held that S. 459G imposed a time requirement as an essential condition to the right to apply to set aside a statutory demand and was not qualified by s. 1322(4)(D) which gave the court power to extend the times. The words “may only” are used in both s. 182D(1) and S. 459G. The latter was held to define the jurisdiction of the Court. Grant's case was distinguished in Emanuele v ASC (1996-97) 188 CLR 114. The ASC had failed to get leave to wind up a group of companies. A majority of the High Court granted leave. Kirby J made certain pertinent remarks:
“There is a reason for the tendency in the series of cases cited by McHugh JA in Woods v Bate (1986) 7 NSWLR 560 at 567 and in other cases to like effect, for the reluctance of courts in recent times to invalidate acts done pursuant to a statutory provision because of a failure to comply with a prior procedural condition. Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural pre-conditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. The Law is a case in point. Its complexity and detail is such that it has necessitated, within a short time of its enactment, the passage of the First Corporate Law Simplification Act 1995 (Cth). A number of farther stages of simplification are promised. An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing. Against that risk, courts generally retain the facility to cure slips and to repair oversights in proceedings before them, in appropriate cases where justice requires it.”
- [16]The court in Emanuele was concerned with section s. 459P(2) of the Corporations Law which stated that the application may “only be made” with leave of the court. At p 155 Kirby J remarked:
“Whilst it is true that, superficially, the language of s. 459p looks more emphatic than a number of the predecessors referred to in the cases just cited, the differences should not be taken at face value. The Law has deliberately been expressed in a different style of drafting, as the Explanatory Memorandum makes clear. Had there been some particular new problem which was thought by those who proposed the new procedures for the winding up of companies in insolvency to require leave, with a more inflexible consequence than had previously been the case in company law cases, it might have been expected that the statute would have provided expressly for the consequence of the absence of leave. Alternatively, it might have been anticipated that the Law Reform Commission's Discussion Paper and report would have revealed the additional mischief. Instead, the explanations given for the leave requirement are the familiar ones. In the case of the ASC, already bound by obligations to conform to its statute and having other, separate entitlements to procure the winding up of a company in stated circumstances, the notion of introducing a novel procedure of absolute strictness is not an immediately attractive one.”
- [17]In distinguishing Grant's case, Kirby J noted that the explanatory material made it clear that a degree of strictness was contemplated by the drafters in Grant's case. I adopt his Honour's comments as set out above as applicable to the WCA.
- [18]Counsel for the plaintiff attempted to deal with Grant's case by distinguishing it on the basis that it referred to a specific period of time. Reference was made by counsel to The Commonwealth v Verwyen (1990) 170 CLR 394 at 425:
“As it is a characteristic of a right to susceptible of waiver that it is introduced solely for the benefit of one party, a condition precedent to the jurisdiction of a court to grant relief cannot be waived: Park Gate Iron Co v Coates (1870) LR 5 CP 634. It follows that, if the jurisdiction of a court to entertain proceedings is conditioned on the commencement of the proceedings within a specified time, a defendant cannot waive the time requirement and thereby confer jurisdiction on the court. Conversely, where a case is fought on the issue whether a time limitation in a particular statute is or is not a condition precedent to jurisdiction, an argument that another statute overrides the time limitation can be raised on appeal though conceded in the court below: Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 547 and 548.”
In Park Gate Iron Company op. cit., a statute required a party who appeals from a decision of a county court judge to give a notice of appeal of security for cost within ten days. It was held that they were not conditions precedent to the jurisdiction of the Court to hear the appeal and may be waived by the respondent. The court regarded these as procedural requirements and were enacted solely for the benefit of the respondent. They could therefore be waived by the respondent. Reference was made to Graham v Ingleby 1 Ex 651 which shall be discussed later in these reasons. However, as a general proposition the following statement is relevant:
“No universal rule cm be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.”: Liverpool Borough Bank v Turner 29 LJCH 827.
Arguments or Waiver
- [19]The plaintiff's counsel argues that s. 182D(1) is merely procedural albeit of a mandatory nature. The argument proceeds that the requirement of a certificate may be waived by the respondent. It is necessary to look at the facts in the first instance before determining that question as a matter of law. The relevant facts are as follows:
March 1994 | - the plaintiff commences work for the defendant as a heavy plant operator, |
June 1996 | - the plaintiff's commences to suffer symptoms of pain in the buttock, |
December 1996 | - the plaintiff undergoes back surgery to L5/S1 disc protrusion, |
20 June 1997 | - action 2133/1998 commenced |
5 March 1998 | - plaintiff delivers a statement of claim, |
10 March 1998 | - defendant delivers defence, |
24 November 1998 | - defendant signs certificate of readiness, |
10 June 1999 | - farther Amended Defence delivered raising S. 182D issue, |
2 July 1999 | - defendant provides conditional certificate for period June 1996 to 18 November 1996, |
21 July 1999 | - action to 2946/1999 commenced, |
2 August 1999 | - application to strike out pleadings, etc. |
5 August 1999 | - proposed trial date |
13 September 1999 | - adjourned trial date |
- [20]The applicant's argument is that the respondent did not raise the S. 182D issue until after the expiration of the limitation period. The argument therefore proceeds that the applicant has been prejudiced by the conduct of the respondent and that such conduct amounts to a waiver of its rights under the relevant provisions of the Workers' Compensation Act. The plaintiff's counsel further submits that if the issue had been raised earlier then the necessary certificate under s. 182D could have been obtained. The applicant's counsel submits that neither the plaintiff nor his solicitors did not know or believe that the action was incompetent. On the other hand, there is no affidavit from the solicitors for the respondent as to what knowledge they had prior to the delivery of the Further Amended Defence on 10 June 1999 raising the S. 182D issue. In the absence of any explanation by the solicitor's for the respondent, one can more readily infer that they were aware of the failure by the applicant to comply with S. 182D and the failure to plead was an intentional act.
Application to disallow amendment to plead s. 182D (Para 5AA of Further Amended Entry of Appearance and Defence)
- [21]The amendment to the pleading was made pursuant to Rule 104 of the District Court Rules of 1967. It provided as follows:
“However, at the hearing the Court may for any sufficient cause disallow the amendment or give effect thereto on such terms as to costs or otherwise as may be just”.
- [22]To allow the amendment as at the date of its filing viz. 10 June 1999 would be likely to deprive the applicant of its right to bring an action. An amendment of that nature should not be allowed if the applicant “could not be compensated for by costs or otherwise”: Tildesley v Harper (1878) 10 ChD 393 at 396, per Bramwell J.
- [23]The Uniform Civil Procedure Rules 1999 came into effect on 1 July 1999. Rule 379(1) provides as follows:
“(1) If a party makes an amendment without leave before the filing of the request for trial, mother party may, within 8 days after service on the party of the amendment apply to the court to disallow all or part of the amendment.”
- [24]However, as the latter rule was not applicable at the material time, the matter can be dealt with at this hearing pursuant to Rule 104. Neither party objected to this procedure. In my view, it is sufficient cause to disallow the amendment if the effect of same would be likely to deprive the applicant of a right to pursue a claim for damages in light of the lateness of the amendment: See Maxwell v Murphy (1956-1957) CLR 261 at 281. The material establishes that the notice of the amendment was received by the solicitors for the applicant on 10 June 1999. The limitation period expired sometime in June 1999. It was not until 2 July 1999, the WorkCover wrote to the plaintiff's solicitors and provided a conditional certificate for the limited period from June 1996 to 18 November 1996. That certificate is referred to and relied upon in action 2946 of 1999. It was too late in relation to the facts pleaded in action 2133 of 1998.
Is it necessary to plead non-compliance with s. 182D(1)?
- [25]It is necessary to consider what are the requirements for pleading where the effect of the pleading is to suggest that the applicant's claim is not maintainable. Rule 92 of the District Court Rules provided:
“The defence shall state specifically which of the allegations in the plaint the Defendant admits and which such allegations the Defendant denies or does not admit, all matters of fact which show that the Plaintiff's claim is not maintainable or that the transaction relied upon by the Plaintiff is void or voidable in point of law and all grounds of defence which if not raised would be likely to take the Plaintiff by surprise as, for instance, infancy, bankruptcy, justification if the claim is for tort, a defence upon equitable grounds, fraud, release, payment, performance, facts showing illegality either by statute or common law or the statute of frauds and limitations or any other statute provided for a limitation.”
- [26]It is relevant also to refer to O 22 r 12 of the Supreme Court Rules which may be more specific and therefore applicable pursuant to Rule 4 of the former District Court Rules:
“Conditions Precedent to be specified by party denying performance.
“12(1)An averment of the performance or occurrence of all conditions precedent necessary for the case of either party shall be implied in the party's pleading.
(2)And when the performance or occurrence of any condition precedent is denied, the condition must, unless it already appears by implication, be distinctly specified in his or her pleading by the party denying it.”
- [27]For completeness, reference is made to the UCPR and in particular Rule 149(1) and Rule 153(2). As mentioned, these came into effect on 1 July 1999 and are similar to O 22 r 12.
- [28]It has been argued by the applicant that the requirement of a notice is not part of the cause of action but a condition precedent to the commencement of the action. The respondent's counsel submits that it was for the applicant to plead compliance with s. 182D(1), rather than the for the defendant to plead non-compliance. O 22 r 12 did not require a condition precedent to be pleaded. In fact, the party denying the performance of the condition precedent was required to deny it. The learned authors of the Supreme Court Practice, Ryan, Weld and Lee, state at para 22.12.2:
“In respect of actions in which an insurer is to be served, the provisions of O 24 r 8 provide that the plaintiff must allege service on the insurer, and the filing of affidavit in the registry as to service, in the statement of claim. Where the nominal defendant is a defendant to an action, those matters set forth in Part III of the Motor Vehicles Insurance Act 1936 which attract the involvement of the nominal defendant, must be pleaded in the statement of claim as these matters constitute material facts which form a condition precedent to the cause of action.”
This observation seems to support the applicant's contention that the notice is a condition precedent, but the learned authors go on to say that it should be pleaded in the Statement of Claim. Contrast the approach taken in Ceric's case discussed in paragraph 68 of these reasons. I adopt the latter reasoning.
- [29]To raise the point so late in the proceedings would have taken the applicant by surprise. If the requirement of the notice is to be categorised as a condition precedent, I am satisfied that the onus lay on the respondent to raise it before it did. An illegality or nullity must be specifically pleaded: Thorby v Goldberg (1964) 112 CLR 597, 617. In any event, I am satisfied that it ought to have been pleaded.
Is the notice required under s 182D(1) a condition precedent?
- [30]Reference has been made to Young v. Keong op. cit. for the proposition that a notice under a similar provision in the Motor Accident Insurance Act is a procedural albeit mandatory requirement. No explanation has been given by the respondent as to why it was not raised or pleaded at an earlier opportunity. The respondent had signed a Certificate of Readiness for trial in February 1999.
- [31]It is convenient at this point to look at some of the authorities referred to by the applicant. In Airservices Australia v Austral Pacific Group Ltd (1998) 157 ALR 125, it was held that unless and until an employee made an election under s. 45(1) of the Safety Rehabilitation and Compensation Act 1988 to institute an action against the Commonwealth authority for damages for non-economic loss, then pursuant to s. 44(1) of the said Act, no action lies. Ambrose J at 133 stated:
“In Scoles v Commissioner for Government Transport (1960) 104 CLR 339 the High Court considered the sufficiency of a purported notice of action required by s. 233(1) of the Transport Act 1839 (NSW). It was held unanimously that the purported notice in that case was insufficient to constitute an effective notice of intended action. However, Windeyer J (at 343) observed:
“Counsel for the respondent said that giving a notice of action was a condition precedent to the right of action. That is so; but it is a procedural condition only. It is not an ingredient of the cause of action: Harding v Lithgow Corporation (1937) 57 CLR 186. The absence of such a notice, if not waived, bars the remedy; but it does not extinguish the right.”
In my view the reasons expressed in Harding and Scoles support the argument that service of an election in writing to institute action against the Commonwealth does not form part of that cause of action. Section 45 in its clear terms assumes the existence of a pre-existing cause of action for damages for non-economic loss suffered by an employee of the Commonwealth of the sort for which compensation is payable under ss 24,25 and 27 of the Act.”
- [32]In Scoles op cit the relevant section of the Transport Act 1930 (NSW) read:
“No action shall be commenced against the Commissioner...for anything done or omitted...under this Act, until one month at least after notice in writing...”
- [33]Further, Windeyer J at p. 343 of Scoles' case added:
“A defendant entitled to notice under the Transport Act must, if he would take advantage of absence of notice, show by his plea that the action is one in which notice was required”.
- [34]In my view, it is incorrect to say that “civil liability is extinguished until that pre-condition is met”: Short v Michaliczac and Ors. op.cit. p. 9. The remedy in the present case was to seek damages by way of settlement or by commencing proceedings. The applicant was not entitled to pursue either remedy without a certificate. In Emanuele op.cit. p 125, Dawson J stated:
“The failure to obtain leave was a mere defect or irregularity in the exercise of that jurisdiction. It did not affect the validity of the order made, although it may have provided a ground for staying it or setting it aside.”
His Honour referred to Posner v Collector for Inter-State Destitute Persons (Vict) (1946) 74 CLR 46 at 476-477,483:
“Irregularities in procedure do not, it is clear, invalidate or make void orders within jurisdiction. When a court has jurisdiction over a proceeding and proceeds inverso ordine or erroneously that does not take away the jurisdiction of the court and make its order void. A party is not without remedy in such case: he may make application to the court itself or appeal where appeal lies (Ex parte Story (1852) 8 Exch. 195). But as the Lord Chief Justice Coleridge observed in Martin v Mackonochie ((1879) 4 QBD 697 at 786) what is procedure, and therefore, if wrong, matter of appeal only; and what is jurisdiction, and if wrongly asserted, matter for prohibition, is almost impossible to define in general language. Cotton LJ in the same case ((1879) 4 QBD, at 735), said if the court of limited jurisdiction, in dealing with a matter over which it has jurisdiction, has fallen into an error of practice or of the law which it administers, this can only be set right by appeal, and affords no ground for prohibition. When, however, and Act of Parliament has imposed restrictions, as to the circumstances under which a court of limited jurisdiction is to act in matters otherwise within its jurisdiction, then, if the court of limited jurisdiction disregards the restriction so imposed, and acts in violation of the statutory restrictions, the party aggrieved has a remedy by prohibition, even although the court of limited jurisdiction may have put a construction on the Act, and there is an appeal from its decision. Orders made in violation of statutory restrictions and therefore without jurisdiction have already been discussed.
Irregularities in procedure in matters within jurisdiction are often called nullities but the proceedings are not void in the sense that they have no effect or operation in law and can be ignored. The procedure or order may be disallowed or set aside ex debito justitiae in some cases and the irregularity waived in others. It is unnecessary to discuss the line of demarcation between such irregularities in this case. Smurthwaite v Hannay ((1894) AC 494); Anlaby v Praetorius ((1888) 20 QBD 764); Craig v Kanssen ((1943) KB 256), however, illustrate irregularities that are often described as nullities though proceedings or orders in a superior court of record cannot be ignored and treated as of no effect or operation in law.”
“Void” has been described as “of no legal effect, a nullity” whereas voidable means that an act or agreement has full legal effect until set aside: “A Concise Law Dictionary” by Osborn, 5th Ed. Even if the action is a nullity, it does not follow that all rights are thereby extinguished. Dixon J in Posner's case op.cit. At 483 stated:
“It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so. Further, the observation of Sir Frederick Pollock about the use of the word “void” in relation to contracts is even more true of its use in connection with orders and judgments:— “The use of the word void proves nothing, for it is to be found in cases where there has never been any doubt that the contract is only voidable. And as applied to other subject-matters it has been held to mean only voidable in formal instruments and even Acts of Parliament.”
Waiver
- [35]The reasons for judgment of Windeyer J op cit touch upon the proposition that the “absence of such a notice, if not waived, bars the remedy; but it does not extinguish the right”. Having decided that the notice under s. 182D(1) is a procedural albeit mandatory requirement, a party can waive its rights notwithstanding that a statute may require it, if certain conditions are met.
- [36]In his reasons for judgment in the Commonwealth v Verwayen (1990) 170 CLR 394 at 424, Brennan J quoted the passage from Graham v Ingleby 154 ER 277 at 279:
“[I]t is evident that a party who has a benefit given him by statute, may waive it if he thinks fit. There are many cases in which no action can be commenced except after certain notice of action. That is a requirement by statute; but if a plaintiff went to trial, and the defendant did not then object to the want of notice, could he afterwards set aside the whole proceedings because no notice was given? It is clear that he could not.” (My emphasis)
This passage deals with the respondent's submission that waiver must occur before the action commences.
- [37]At 426 of Verwayen's case, Brennan J quoted from the decision of Windeyer J in Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471 at pp 488-489:
“And, even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right: and in such cases it can, it seems, be waived...”
Further at 427:
“...If a party is to be held to an intention to waive the limitation, it can be only by contract or estoppel or, where the intention to waive appears from a failure to plead the limitation, by refusal of leave to amend the pleading (if leave by necessary and refusal of leave be justified).”
- [38]Leave to amend the defence has been refused. Therefore, prima facie, the intention to waive has been established according to the remarks of Brennan J. However, it is necessary to look more closely at the authorities, and thereafter to determine whether s. 182D(1) was a provision intended for the benefit of the respondent or moreover the Board. The Board constituted under s. 3 of the WCA was responsible for issuing any certificate as the insurer of the respondent. No point has been raised that the interests of the insured or the insurer are other than common in the present case. The Board, and moreover WorkCover since 5th December, 1997, through its solicitors have had the carriage of the action on behalf of the respondent: WorkCover is entitled to conduct the action: see ss. 306(5), 545(1) of the WorkCover Queensland Act 1996.
- [39]Gaudron J in Verwayen stated the principle as follows and it apposite in the present case:
“A party to litigation who has failed to object that a condition attaching to the exercise of jurisdiction has not been satisfied or that the proceedings were irregularly instituted may, by reason of his subsequent participation in the proceedings, be precluded from later raising the defect.” (p 483)
- [40]That proposition was supported by the two English decisions referred to by Her Honour: Broad v Perkins (1888) 21 QBD 533 at 534, and Moore v Gamgee (1890) 25 QBD 244 at 248.
- [41]McHugh J in Verwayen at p. 492 quoted from the judgment of Brett J in Park Gate Iron op cit at 639:
“If they are conditions precedent to the jurisdiction of the Court to hear the appeal, it is clear that they cannot be waived; but if they are mere matters of procedure, and enacted entirely for the benefit of the respondent, this being a civil matter, they might be waived.”
- [42]Further at p. 495, McHugh J cited the case of Toronto Corporation v Russell (1908) AC 493 at 501 where the Judicial Committee said:
“There is no evidence to show that the plaintiff, up to a short time before bringing this action, ever complained that he had not received the notice which his counsel now insist was a condition precedent to a valid sale, or that the sale was invalid for any reason. On the contrary, he treated the sale as valid, but mistook the effect of it on his right to redeem. Their Lordships think that, in the absence of all explanation by the plaintiff other than that given in his evidence on discovery, the legitimate inference to be drawn is that he consented to dispense with this notice - that is, he waived it.”
Those comments are particularly relevant in the present case.
- [43]His Honour referred to the Queensland decision of Bock v Don-Rex Furniture (Qld) (1981) QdR 326. In that case it was held by Sheahan J that the requirement be s. 9A(2) of the Workers Compensation Act 1916, of service on the Board was for the sole benefit of the Board and could be waived by it and had been waived by the combination of correspondence and the filing of an entry of appearance.
- [44]The following passage from the judgment of McHugh J in Verwayen op.cit. p 497 seems to summarise the requirements of the law on waiver involving a statutory requirement:
“Some of the cases which debar “a person from raising a particular defence to a claim against him”, however, stand outside the categories of election, contract and estoppel. They are sui generis. They are cases where a statute has conferred a right on A., subject to the fulfilment of a condition for the benefit of B., and B. has waived the condition by taking the next step in the course of procedure without insisting on A. fulfilling the condition. In my opinion, the true basis of the decisions in these cases is that, where the existence of a statutory right depends upon the fulfilment of a condition precedent, a person entitled to insist on the fulfilment of that condition may dispense what its compliance unless it is enacted for the benefit of the public, and that person will be held to have waived compliance with the condition if he or she knowingly takes or acquiesces in the taking of a subsequent step in the course of procedure laid down by the statute after the time for the other person to fulfil the condition has passed.”
See also Graham v Ingleby op.cit. which I find is relevant to the present case.
Was s. 182D(1) enacted solely for the benefit of the Board?
- [45]In the Explanatory Notes to the 1995 Amendments, the following appears:
“Objectives of the legislation
The objectives of this legislation are:—
- To introduce a series of immediate measures to ensure that the Workers' compensation Scheme is returned to a fully funded position over the next 5 years, including:—
- a choice for workers with less serious injuries between improved statutory benefits and common law action;
- increased statutory benefits;
- introduction of an employer excess;
- introduction of a subcharge on premiums;
- abolition of the cost indemnity rule as part of common law proceedings for less serious injuries.
Reasons for the Bill
- 1.The Queensland Workers' Compensation Scheme has experience a particularly difficult period primarily due to pressure on costs, particularly as a result of rising common law claims costs. In addition, the scheme suffered a decline in premium income during the 1990/91 and 1991/92 years.
- 2.Premium rates were increased during 1993/94 and 1994/95 to cope with pressure on the scheme. However, a 48.7% growth in common law claims in 1994/95 has increased cost pressures on the scheme.
- 3.The result has been a trading deficit recorded in the Profit and Loss Account at 30 June 1995 of $173.0M and an unfunded liability of $114.3M being recorded in the Balance Sheet.
- 4.To address these financial difficulties, a number of reform measures have been considered together with extensive consultation with stakeholders to the Scheme resulting the policy changes detailed in this Bill.”
- [46]When one looks at s. 182D(1) against that background, it is clear that the Board wanted to confine the rights of an injured employee to sue only if a certificate was obtained. Also, as a prerequisite to granting the certificate, the assessment process under 130A(1) was required to be undertaken.
- [47]After that assessment was determined, the Board may make an offer of lump sum compensation. Section 182D(1) only applies to a worker who suffers an injury other than a serious injury and where the employer is otherwise indemnified by the Board: s. 182A(1). A worker must then elect between lump sum compensation and damages at law: s. 182B(1). A worker is taken to seek damages at law for the injury when the worker either seeks to negotiate a damages settlement or starts proceedings: s. 182B(6). The right to seek costs in the action is limited: s. 182C(3). Section 182D limits the right to sue. A worker may only “seek damages at law for an injury” if the Board gives its certificate. The procedural changes introduced in 1995 are all one way. They are to my mind solely for the benefit of the Board and moreover the employer. The Explanatory Notes provide the reasons for so limiting the rights of the worker where they suffer less serious injuries. Some aspects of the 1995 amendments may not be solely for the benefit of the Board but the section under scrutiny, s. 182D(1) is, I find, solely for the Board's benefit.
- [48]In accordance with the authorities, particularly Verwayen's case, I am satisfied that:
in the original claim and also the proposed amendment. Cases such as Karasaridis v Kastoria Fur Products (1984) SASR 345 and Swietlik v Central Linen Service (1991) 56 SASR 569 can be distinguished. I am satisfied that the applicant has discharged the onus in relation to rule 376(4). The respondent's counsel raised some factual issues which can be dealt with more appropriately by the trial judge.
Supplementary Submissions
- 51.It has been submitted that if an action is a nullity then it is not possible to amend the pleadings: Fitzpatrick v Jackson op.cit. Kelly J at 548 distinguished the line of cases referred to in Re Testro Bros. Consolidated Ltd [1965] VR 18. It dealt with “sections analogous to s. 371(2) of the Companies (Qld) Code... concerned with the granting of leave under legislation aimed at preserving the control of the court over the administration of the companies' affairs”. Kelly J distinguished such legislation from s. 95 of the 1978 Public Trustee Act which said “A prisoner shall be incapable except with the consent in writing of the Public Trustee... of bringing an action...”. Kelly J said:
“To my mind that is a somewhat different case from the granting of consent to the bringing of an action by a prisoner which is required by legislation providing for the management by a statutory corporation sole of the estate of that prisoner. It is relevant to note in this regard that the effect of the legislation is that the Public Trustee as manager of the estate has the option of instituting proceedings in his corporate name or in the name of the prisoner or of permitting the prisoner himself to bring the action. Having regard to those matters I am of the opinion that the granting of consent to the bringing of the action is a condition precedent to doing so with the consequence that proceedings commenced without such consent were a nullity.
Finally, in my view leave could not properly have been granted to join the second respondent as a party to the action as it is not possible to join a party to an action which is a nullity.”
- 52.Macrossan J held that the writ was a nullity but it was not argued what the effect of a nullity was in other situations. One has to interpret the particular statutory language. For example, parliament has not stated that a plaintiff is debarred from bringing an action where s. 182D(1) is not complied with. Contrast s. 37(4) of the Motor Accident Insurance Act 1994 as it relates to the Nominal Defendant. S. 37(4) bars an action against the Nominal Defendant where the required notice is not given pursuant to s. 37(3).
- 53.Section 39(8) provides:
“If a claim against the Nominal Defendant is barred because the claim relates to personal injury caused by, through or in connection with a motor vehicle that cannot be identified and the claimant failed to give notice of claim under this Division within 9 months after the motor vehicle accident, the Nominal Defendant cannot waive compliance with the requirement to give notice within the time allowed by this Division, nor can the court give leave to bring a proceeding in a court despite the noncompliance.”
- 54.That section prohibits waiver by the Nominal Defendant. It is common ground in the present case that the court has no power to grant leave to a plaintiff to bring a proceeding despite non-compliance with s. 182D(1). Section 305(1) of the WorkCover Queensland Act 1996 now provides for leave to be given despite non-compliance. If parliament had intended that there could be no waiver by the Board for non-compliance with s. 182D(1) then the legislation could have so provided.
- 55.A condition precedent has not been complied with by the applicant before action. Consistent with the authority of Young v Keong op.cit., it is a procedural requirement. Some cases have held such non-compliance to be a nullity. It is certainly an irregularity which could deprive the applicants of a remedy. Even assuming it to be a nullity, it means that the action is void or voidable. It may have provided grounds to stay the action or have it dismissed: Dawson J page 12 Emanuele op.cit. where his Honour referred to defective orders; see also Testro Bros op.cit. Sholl J at p. 36 where reference is made to Posner's case op.cit. para 34.
- 56.In the present action, the respondent entered an appearance on 27 February 1998, and an amended defence on 22 January 1999 and no mention was made of s. 182D(1) or that the action was a nullity. Earlier, on 11 May 1998, the action was transferred from the Supreme Court to the District Court. The point was not raised. The language of Lord Green MR in Craig v. Kanssen op.cit. at 262 is apposite:
“...a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside...”
Cockburn v Hyne and Son Pty Ltd
- 57.Reference has been made by both parties in the supplementary submissions to a decision of His Honour Judge Dodds of Cockburn v Hyne and Son Pty Ltd (Plaint 17/99, judgment delivered on 15 September 1999).
- 58.The respondent submits that in Cockburn's case, the plaintiff had already pleaded causes of action arising prior to January 1996 and that the action was valid in that respect. No notice had been given pursuant to s. 182D(1). I accept the correctiveness of that observation and agree with His Honour's reasoning in allowing the amendment notwithstanding the expiration of the limitation period.
- 59.His Honour held that “to commence an action which is prohibited from being commenced does not create an existing action. The apparent action is a nullity: Fitzpatick v Jackson op.cit. Thus the action in so far as it relates to a period subsequent to 1 January 1996 is a nullity”. It was not argued in that case, assuming the action to be a nullity, what it may mean in circumstances where a party has purported to waive statutory requirements. I find that the action was voidable at the option of the respondent.
- 60.Once the non-defaulting party, in this case the respondent, is held to have waived the statutory requirements, then the action can proceed. To decide otherwise in this case would be an injustice to the applicant. If the applicant had been advised prior to June 1999 of the defective proceedings, then his solicitor would, I find, have taken the necessary steps to obtain a certificate as required under s. 182D(1). This then could have been achieved within the limitation period.
- 61.Once the parties have accepted the jurisdiction of the court and a jurisdiction of a court to make orders, then the court has a role to play in deciding whether an action should proceed notwithstanding a failure to comply with a condition precedent. The court could have stayed or dismissed the proceedings upon application by the respondent after the writ was served. If the limitation period had not expired, then the applicant was entitled upon obtaining a certificate to bring fresh proceedings: See by way of a comparison Re Testro Bros. [1965] VR 18 at 34-35. It is recognised that leave provisions existed in that instance whereas they are absent in the WCA. It is also the case that leave nunc pro tunc is not therefore available.
- 62.The conduct of the respondent or those acting on its behalf has, in my view, amounted to a waiver of the statutory requirement. This can apply even though the statutory requirement is obligatory or mandatory and proceedings would otherwise be a nullity: In re Affairs of Hart [1943] LT 60, 62 which was referred to in Cameron v Cole (1943-1944) 68 CLR 571 at 591, 605.
- 63.In Woods v Bate (1987) 7 NSWLR 560 at 567, McHugh JA with whom Hope JA agreed stated:
“In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition....Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice: cf Hatton v Beaumont [1977] 2 NSWLR 211 at 226 per Mahoney JA.”
- 64.Both Woods v Bate and Hatton v Beaumont were cases where the court was asked to determine the effect of non-compliance with a statutory provision that something had to be done within a particular time.
- 65.Hope JA in the latter case said at 222:
“I cannot find anything in the language of the Act or of the regulation which leads necessarily to a conclusion that reg.14(e) implies nullification for non-compliance, or which precludes a construction which treats its provisions as directory only.”
- 66.Mahoney JA at 225 stated in terms apposite to the present case:
“The function of the court in such a case as this is to give effect to the intention of the legislature. This it may do without difficulty where it appears from the terms of the legislation that the legislature directed its attention to the question and expressed an intention upon the effect to be given to the particular provision. But in most cases, of which the present is one, such an intention is not expressed and the court's task is, by the application of the appropriate principles, to divine or impute that intention: see Black Clawson International Ltd v Papierwerke Waldhoff-Aschaffenberg AG [1975] AC 591 at p. 645 et seq; Farrell v. Alexander [1977] AC 59 at p. 81 et seq; and this frequently leads, not merely to litigation, but also to uncertainty in the day-to-day operation of the legislation. The administration of the law would be facilitated if, in the formulating of legislation, attention were given as a matter of routine to this question. If this were done by a specific indication in the particular enactment of the effect of non-compliance with its provisions: cf. The Supreme Court Act 1970, s. 81; or by a general enactment which provided for relief against the consequences of non-compliance with a mandatory statue, the cases of the present kind would be, if not avoided, at least greatly reduced in number.
Second, when determining a problem of the present kind, courts should, in my opinion, pay particular regard to the undesirable effect of introducing rigidity into the operation of the enactment.”
- 67.The consequences of non-compliance with s. 182D(1) have not been clearly stated in the legislation compared to the Motor Accident Insurance Act op. cit. In the absence of waiver by the Board, non-compliance with s. 182D(1) would result in “total failure”: Mahoney J op.cit. 226.
- 68.A summary of the principles which I find applicable are set out in Ceric v CE Heath Underwriting (1994) 4 NTLR 135 at 144 and 146 in the joint judgment of Gallop ACJ and Morling AJ:
“In circumstances where the facts make out a cause of action known to the common law, eg in tort, it is easy to describe a statutory requirement that the leave of the court be obtained before proceedings based on that cause of action are commenced as a purely procedural requirement. But where the cause of action itself is to be found in statutory provisions, we think it is legitimate and necessary to consider the whole of those provisions in order to identify the ingredients of the cause of action.” (at 144)
...
The reasoning which led the Court of Appeal in National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 450 to conclude that an order nunc pro tunc could not be made on the facts of that case was that an action commenced without leave was expressed to be a “complete nullity”. With respect, we are unable to agree with that reasoning. We find it difficult to describe a proceeding commenced in a court which has jurisdiction to entertain the proceeding as a nullity. If the defendant in the National Mutual case (supra) had failed to plead that the requisite leave to commence the proceedings had not been obtained by the plaintiff and the matter had proceeded to judgment without the point ever having been taken, we cannot think that the judgment would have been a nullity.” (at 146)
Orders
- 1.The amendment to paragraph 5AA of the Further Amended Entry of Appearance is disallowed.
- 2.The application to strike out action D2133 of 1998 is refused.
- 3.The applicant is given leave to amend the Statement of Claim in terms of Exhibit “G” in these proceedings.
- 4.That action D2133 of 1998 be consolidated with D2946 of 1999.
- 5.That the respondent do pay the applicant's cost of an incidental to all three (3) applications to be assessed.