We recently applied to a Registrar of the District Court for an
order for summary judgment in relation to a writ of summons being
filed prior to the worker complying with Section 93K(4), namely
receiving written notice from the Director of WorkCover that her
election to retain the right to seek common law damages had been
registered. This was based on an argument that a Court cannot award
damages to the Plaintiff in the action.
The application was heard and reasons for decision were
delivered on 26 November 2012. The case concerns a plaintiff who
filed a writ on 16 June 2011, just before the 3 year limit imposed
by the Limitation Act 2005 was due to expire (in the event
that 3 year limit still applied, noting the decision of Abreu v
Thomas Peacock & Sons Pty Ltd  WADC 31 has been
appealed), without first complying with Section 93K(4).
It was argued by the plaintiff that the 31 August 2011 version
of Section 93K(4) applied in this case, as it was in force at the
time her writ was filed. Relevantly, Section 93K(4)(c) provided
that "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." The plaintiff relied on the decision of Ward v
Walton (1989) 66 NTR 20, which held that the word 'within'
sets an outer limit for the time in which an action must be
brought, meaning in this case that she could file a writ at any
time before the expiration of 30 days after the Director had given
written notice of the election registration. It was also argued
that the workers' compensation legislation is beneficial
legislation and should be interpreted accordingly.
On behalf of our client we argued that in the event the current
version of Section 93K(4)(c) applied it does not permit a plaintiff
to file a writ before an election has been registered.
Alternatively, if the former version of Section 93K(4)(c) applied
to her case, in the context of a period of time the word
'within' means what it says and does not mean 'no later
than.' We also presented further arguments relating to the
interpretation of termination day in Section 93M(1) of the Act.
The Deputy Registrar preferred the Plaintiff's
interpretation of the former version of Section 93K(4)(c) of the
Act, which he held applies to the action and stated that it
"would seem to be an unfair result and an interpretation
of the section which would prevent such an outcome and preserve to
injured workers their right of common law action would appear to me
to be more appropriate..." He also noted that if the
current version of Section 93K(4)(c) were to apply to the case the
action would be untenable.
We have filed an appeal and will update you on relevant
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