Transfield Pty Ltd v Rawstron

[2005] WASCA 78

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Workers' Compensation
2. › Common law proceedings against employer
3. › Deemed employer under s 175
4. › Head contractor and subcontractor relationship
5. › Whether all elements of s 175 established on the pleadings
6. › Whether leave required under s 93D(4)
7. › Workers' Compensation and Rehabilitation Act 1981 (WA), ss 93B, 93D(4), 175
1. Workers' Compensation
2. › Common law proceedings against employer
3. › Failure to obtain leave
4. › Whether proceedings a nullity
5. › Effect of transitional provisions
6. › Whether leave could still be obtained
7. › Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32(7)
8. › Workers' Compensation (Common Law Proceedings) Act 2004 (WA), ss 5, 7(2)
1. Workers' Compensation
2. › Common law proceedings against employer
3. › Occupiers' liability claim against deemed employer
4. › Whether claim under Occupiers' Liability Act fell within s 93B
5. › Whether cause of action or status as employer determined applicability of leave requirement
6. › Workers' Compensation and Rehabilitation Act 1981 (WA), s 93B
7. › Occupiers' Liability Act 1985 (WA), s 5(1)
1. Equity
2. › Waiver and estoppel
3. › Whether mere inaction by defendant gave rise to waiver or estoppel
4. › Whether delay in raising procedural objection constituted election between inconsistent rights
5. › Whether inaction induced assumption by plaintiff

Quick Take

Where a head contractor is a deemed employer under s 175 of the Workers' Compensation and Rehabilitation Act 1981 (WA), leave under s 93D(4) is required regardless of how the cause of action is framed (including as occupiers' liability). Following the Workers' Compensation (Common Law Proceedings) Act 2004 (WA), leave can no longer be obtained for proceedings commenced without leave before 5 October 1999 where leave was not granted by 25 October 2004. Mere delay by a defendant in raising a leave objection does not give rise to waiver or estoppel.