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 [2012] 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 developments.
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