Harris v Cth

[2003] WASCA 220

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Workers' Compensation
2. › Commonwealth employees
3. › Election to commence common law proceedings
4. › Safety, Rehabilitation and Compensation Act 1988 (Cth), s 45
5. › Whether letter stating proposal to commence proceedings constituted election in writing
6. › Requirements for valid election
7. › Election must be express and unequivocal
1. Statutory Interpretation
2. › Commonwealth legislation
3. › Safety, Rehabilitation and Compensation Act 1988 (Cth)
4. › Section 45
5. › Meaning of 'elect in writing'
6. › Whether election can be implied from conduct
1. Practice and Procedure
2. › Leave to appeal
3. › Whether application for leave to appeal constituted abuse of process
4. › Applicant having commenced fresh proceedings following adverse decision
5. › No abuse where applicant preserving rights

Quick Take

A letter from solicitors stating 'We now propose to commence proceedings' does not constitute a valid election in writing under s 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The election must be express and unequivocal, demonstrating a deliberate choice between statutory compensation and common law damages. The communication of a decision to commence proceedings stands on no different footing from the actual commencement of proceedings, which itself is insufficient.