Barminco Investments Pty Ltd & Anor v O'Brien

[2006] WASCA 88

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Workers' Compensation
2. › Common law proceedings
3. › Right to sue for damages
4. › Leave to commence proceedings
5. › Whether former provisions applied after repeal
6. › Whether right to sue accrued prior to repeal
7. › Interpretation Act 1984 (WA), s 37(1)(c)
8. › Workers' Compensation and Rehabilitation Act 1981 (WA), s 93C, s 93D
1. Statutory Interpretation
2. › Repeal of enactments
3. › Saving provisions
4. › Accrued rights
5. › Whether right preserved where no steps taken before repeal
6. › Distinction between abstract rights and accrued rights
7. › Whether procedural characterisation determinative of retrospectivity
8. › Interpretation Act 1984 (WA), s 37(1), s 37(2)
1. Statutory Interpretation
2. › Retrospective operation
3. › Presumption against retrospectivity
4. › Whether procedural provisions with substantive effect attract presumption
5. › Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32
1. Equity
2. › Election
3. › Estoppel
4. › Whether election between statutory regimes possible where only one regime applied as matter of law
5. › Whether mistaken commencement of proceedings under wrong regime constituted election

Quick Take

A worker who suffered a workplace disability before 5 October 1999 had an accrued common law right to sue for damages preserved by s 37(1)(c) of the Interpretation Act 1984 (WA), even if no proceedings had been commenced and no application for leave had been made before the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) came into force. The former provisions of the Workers' Compensation and Rehabilitation Act 1981 (WA), including the leave requirement under s 93D, continued to apply to such workers. A worker's mistaken commencement of proceedings under the wrong statutory regime does not constitute an election or give rise to an estoppel.