JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION	:	PERTH

CITATION	:	CROSLAND -v- THE STATE OF WESTERN AUSTRALIA [2000] WADC 216

CORAM	:	GROVES DCJ

HEARD	:	22 MAY 2000

DELIVERED	:	25 AUGUST 2000

FILE NO/S	:	CIV 111 of 1996

BETWEEN	:	GERRI CROSLAND
Plaintiff
 
AND
 
THE STATE OF WESTERN AUSTRALIA
Defendant 

Catchwords:
Torts - Employer liability - Transitional claim - Application for leave to extend time for filing certificate of registration - No power to extend time
Legislation:
Crown Suits Act 1947
Workers' Compensation and Rehabilitation Act 1981 s 93D(2), s 93D(4) and s 93D(5)
Workers' Compensation and Rehabilitation Amendment Act 1993, s 15 and
s 17
Result:
Application dismissed

Representation:
Counsel:
Plaintiff	:	Mr J Johnston
Defendant	:	Mr M G Lundberg
Solicitors:
Plaintiff	:	Ilbery Barblett
Defendant	:	State Crown Solicitor

Case(s) referred to in judgment(s):

Dwyer v City of Fremantle (No 1) (1996) 15 SR (WA) 201
Harken v Minister for Education; unreported; DCt of WA; 25 July 1994
Holmes v Shire of Swan (1995) 15 SR (WA) 93
Irrera v State of Western Australia (1994) 11 SR (WA) 360
Jumeau v Water Authority of Western Australia (1994) 11 SR (WA) 293
Pilbara Iron Ltd & Anor v Bonotto [1994] 11 WAR 348
Shiels v Minister for Education (1994) 11 SR (WA) 260
Shooter v Minister for Education (1994) 11 SR (WA) 265
Snowden v City of Melville (1994) 11 SR (WA) 228

Case(s) also cited:

Bianchi v Crewe & Sons Pty Ltd, unreported; DCt of WA; Library No 4467; 12 June 1995
Da Silva v United Constructions Pty Ltd (1995) 13 SR (WA) 386
Di Placido v Minister for Education, unreported; DCt of WA; 22 December 1994
Galic v Royal Perth Hospital (1994) 11 SR (WA) 272
Hambley v Shire of Plantagenet (1994) 12 SR (WA) 262
McGauley v Tiwest Pty Ltd (1994) 12 SR (WA) 278
Minister for Health v Seddon (1995) 16 SR (WA) 93
Mulligan v Diamond Sky Pty Ltd (1995) 14 SR (WA) 47
Neale v Minister for Education (1994) 11 SR (WA) 307
Power v City of Perth (No 2) (1995) 15 SR (WA) 99
Thompson v His Honour Judge Byrne of the County Court Melbourne & Ors (1999) 161 ALR 632
Western Australian Petroleum Pty Ltd v Scott, unreported; DCt of WA; Library No 4607; 5 September 1995

1	GROVES DCJ:  By an amended summons to Chambers dated 17 May 2000 the plaintiff seeks the following orders:
"1.	The plaintiff be granted an extension of time pursuant to O 7, r 1 of the Supreme Court within which the writ herein be served.
2.	The time for commencement of this action pursuant to s 17 of the Workers' Compensation and Rehabilitation and Amendment Act 1993  be extended to the date proceedings were issued being 11 January 1996.
3.	The time for filing the Certificate of Common Law Registration under s 11 of the Workers' Compensation and Rehabilitation and Amendment Act 1993 be extended."
2		In effect the plaintiff requires four indulgences of the Court, namely:
(a)	an extension of time to apply to renew a stale writ;
(b)	an extension of time to serve the stale writ;
(c)	an extension of time for commencement of this action, in the nature of a retrospective order, the action already having been commenced; and
(d)	an extension of time for filing the Certificate of Common Law Registration.
3		It is common ground that if the plaintiff fails on any one of those four issues then she will be barred from pursuing a common law claim against her employer in relation to her alleged work injury.  The application was only argued on the latter of the four indulgences, that being a threshold issue.
4		The brief history of the matter is as follows.  The plaintiff claims to have contracted an illness during the course of her employment as a group worker at Longmore Remand Centre at Bentley between December 1989 and February 1990.  She was off work from 25 February 1990 to 9 April 1990 with a provisional diagnosis of infectious hepatitis.  A claim was notified to the employer's workers compensation insurers.  The claim is dated 8 March 1990.  The employer's workers compensation insurer, State Government Insurance Commission (SGIC) responded by letter dated 18 May 1990 to the employer, Department of Community Services, that "there is no evidence that the worker contracted "Hepatitis A" at her workplace and as such we do not consider ourselves liable.  Accordingly we decline liability of this claim…".
5		In or about June 1993 the plaintiff became aware that she had significant ongoing health problems which she attributed to the earlier illness.  By letter dated 22 July 1993 she wrote to SGIC advising that she may be making a claim in the future.  A response dated 12 August 1993 was received from the Workers Compensation and Rehabilitation Commission.  At that time the plaintiff engaged solicitors in Canberra who in turn briefed Perth solicitors on or about 16 February 1994.  On 17 March 1994 the Perth solicitors (because they were not the plaintiff's solicitors at the time of making this application I will refer to them as her former solicitors) wrote to SGIC notifying their appointment and requesting copies of medical reports, claim forms or statements and details of weekly payments and statutory allowances.  By letter of 15 April 1994 the Workers Compensation and Rehabilitation Commission responded enclosing "Certificate of Common Law Registration" No 6187 dated 15 April 1994.  The certificate gives as the "Date of notifiable cause: 28/02/90" and "Employer: Dept for Community Services".  The correspondence also enclosed a fact sheet outlining the steps to be followed in pursuing the claim which inter alia detailed time limitations.
6		It is relevant to interpose here that on 20 April 1994 the Full Court of the Supreme Court of Western Australia delivered its decision in Pilbara Iron Ltd & Anor v Bonotto [1994] 11 WAR 348.  That case is clearly authority for the proposition that where leave is required to bring an action, eg under s 660 Local Government Act; s 6 Crown Suits Act, that leave must be sought before the action is brought.  The Court cannot retrospectively grant leave to bring an action.
7		On 27 May 1994 the former solicitors caused to be issued out of the District Court of Western Australia on behalf of the plaintiff a writ naming "Department of Community Services" as defendant (action No 3525 of 1994).  Leave, albeit required, was not sought or obtained before issue of the Writ.  At the same time the Certificate of Common Law Registration was filed with the Court.  On 25 July 1994 the former solicitors wrote to the plaintiff advising that a writ had been issued.  No mention was made of withholding service of the writ.  Nor was mention made of the consequences or effect which the Full Court's then recent decision might have had on the proceedings which had been issued.  On the same date the former solicitors wrote to SGIC forwarding copy of Certificate of Common Law Registration.  It was stated that they were awaiting up‑to‑date medical information upon receipt of which it was proposed to pursue Workcover proceedings.  No mention was made that in fact a writ had issued.  On 22 August 1994 SGIC replied denying "any common law allegations".  Enquiry was made as to whether or not a writ had been issued and whether or not the Certificate of Common Law Registration had been filed.  In reply of 17 October 1994 the former solicitors advised that a writ had issued (not stating when) and the Certificate filed.  By letter dated 7 April 1995 the former solicitors advised the plaintiff that the writ had been served "as it was due to lapse in May."  On 23 June 1995 an unconditional appearance was entered to the action by the defendant's solicitors.  On 21 September 1995 the former solicitors wrote to the plaintiff, inter alia:
"We must now draw your urgent attention to a recent WA Supreme Court decision which states that a worker must obtain the leave of the District Court before commencing any proceedings against a government department before the proceedings are issued."
8		The decision to which reference was made was presumably that of Pilbara Iron Ltd v Bonotti (supra) which decision had been delivered some 17 months earlier and before the writ (3525 of 1994) was issued.  The truth was clearly misrepresented to say it was then a "recent" decision.  Also the letter went on to misrepresent what had been required so far as commencing proceedings against a Government department was concerned.  Furthermore it would be surprising that the former solicitors who were known to have an active personal injuries practice on behalf of plaintiffs were not aware of the effect of the decision in Pilbara Iron Ltd v Bonotto at or about the time of the decision and had not considered the consequences of that decision.  It appears that they were not forthcoming to the plaintiff so far as difficulties with her action were concerned.  The letter went on to say that if the plaintiff wished to continue with proceedings application would have to be made for leave to commence fresh proceedings.  It appears that the defendant's solicitors on about 16 October 1995 advised the former solicitors that the correct name for the defendant was "The State of Western Australia" and that as the Crown Suits Act 1947 was applicable leave would be required to commence proceedings.  This was confirmed by the defendant's solicitors to the former solicitors by letter dated 14 November 1995.
9		On 11 January 1996 Clarke DCJ granted leave pursuant to s 6(3) of the Crown Suits Act 1947 for the plaintiff to issue a writ against The State of Western Australia without prejudice to the right of the defendant to plead limitation of action prior to 11 January 1996.  The application for leave also sought an order that "the time for the filing of the Certificate of Common Law Registration under s 11 of the Workers Compensation and Rehabilitation and Amendment Act 1993 be extended."  As to that application the learned Judge "reserved to an indefinite date."  In correspondence the next day the Judge's Associate invited the former solicitors to arrange for an appointment to dispose of that question.  The invitation was not taken up.  By a letter dated 27 March 1996 the former solicitors advised the plaintiff that leave had been granted to commence fresh proceedings and that the fresh writ had been issued.  No mention was made that there was outstanding the issue of seeking an extension of time for filing of the Certificate of Common Law Registration or of any difficulties which may arise with that application.  It is relevant to note that by this time there had been a number of decisions of this Court as to the issue of whether or not the Court in fact had power to extend the time for filing of the Certificate of Registration  In two early decisions, Harken v Minister for Education; unreported; DCt of WA; 25 July 1994; H H Jackson J and Snowden v City of Melville (1994) 11 SR (WA) 228, time for filing of the Certificate of Registration was extended.  However since Shiels v Minister for Education (1994) 11 SR (WA) 260 delivered 13 September 1994 there has developed a strong line of authority that notwithstanding these earlier decisions time could not be extended.  It is to be noted that the plaintiff's former solicitors represented the plaintiff in Holmes v Shire of Swan (1995) 15 SR (WA) 93 and Dwyer v City of Fremantle (No 1) (1996) 15 SR (WA) 201 and must be taken to have been aware that there was an issue which confronted the plaintiff's claim here.
10		A Notice of Change of Solicitor was filed on 27 October 1997.  Almost two years later viz 12 October 1999 the present solicitors issued a summons to Chambers for orders for renewal of writ and extension of time.  An amended summons was filed on 19 May 2000 and that is the application which is now before the Court.  The explanation given for the delay is stated by the plaintiff at par 21 of her affidavit in support:
"The reason for my delay in making this application has been caused by my previous solicitors' failure to properly advise me in relation to the matters determined at the hearing before Judge Clarke on 11 January 1996 and the delay in my present solicitor advising me and pursuing this application."
That statement reflects a most deplorable situation which has been allowed to arise.  There is no affidavit from either the former solicitors or the present solicitors explaining or giving any reasons for their respective failings.
The law
11		I have detailed the chronology because it is relevant that those events be seen in the context of legislative changes and changes by way of precedent on the legislation over this period of time.  The starting point is with the amendments to the Workers Compensation and Rehabilitation Act 1981 (the Act) which were contained in the Workers Compensation and Rehabilitation Amendment Act 1993 (the Amendment Act).  The Amendment Act came into operation on 20 December 1993.
12		The Amendment Act imposed constraints on awards of common law damages against a worker's employer in respect of a disability suffered by a worker caused by the negligence, or any tort of the worker's employer.  One of the amendments, namely s 93D of the Act provides that damages can only be awarded if the disability results in the death of the worker or it is a serious disability.  Section 93D(2) defines what is meant by a serious disability.  Section 93D(4) provides that proceedings in which damages are sought are not to be commenced without the leave of this Court.
13		Division 2 of the Amendment Act contains some transitional provisions in relation to a "notifiable cause" which is defined in s 5 of the Amendment Act as being:
"…a cause of action that arose wholly before 1 July 1993 in respect of a disability for which, because of s 93D of the principal Act, damages are prevented from being awarded other than under this Division."
14		The terms "relevant employer or insurer" in relation to a notifiable cause is defined in s 5 in the Amendment Act as meaning:
"…the employer against whom the affected person has the cause of action or the person insuring the employer against liability arising out of that cause."

15		Section 6 of the Amendment Act provides for the registration of notifiable causes.  In particular it provides that:
"1.	The Commission is to keep a register containing particulars of notifiable causes registered under this division and persons who have those causes.
2.	The Commission is to register a notifiable cause if it was notified of the cause before 5.00 pm on 29 July 1993.
3.	The Commission may, not later than 30 June 1994, register a notifiable cause if it is satisfied that there is good reason for notice of the cause not having been given until 5.00 pm on 29 July 1993.
4.	The functions of this Commission under this section in respect of a notifiable cause are to be performed within 21 days after the day on which it is notified of the cause."
16		The Commission is the Workers Compensation and Rehabilitation Commission constituted under the Act.  Section 8 of the Amendment Act provides that:
"The Commission, upon registering a notifiable cause, is to give to the affected person a certificate to the effect that the cause is registered and within 21 days notify the relevant employer or insurer in writing accordingly."
17		The Amendment Act in effect provides that if a person having a notifiable cause wishes to proceed with the cause of action, such person must, after commencing proceedings and within 90 days after the day on which the certificate was given, file the certificate in the proceedings and give a copy of it to each other party to the proceedings.  Section 17 of the Amendment Act provides that s 93D(4) and s 93D(5) of the Act:
"…do not apply to the commencement of proceedings in respect of a registered cause if the Certificate of Registration was issued not more than 90 days before the proceedings are commenced and, when the proceedings are commenced, the certificate is filed."
18		Section 15 of the Amendment Act provides for time limits for bringing proceedings.  That section provides:
"1.	If the time limited for bringing proceedings for a notifiable cause would, but for this subsection, expire or have expired at any time after 4.00 pm on 30 June 1993 but before the day that is 90 days after the day on which a certificate of the registration of that cause under this division is given, the time for bringing those proceedings is extended to the day that is 90 days after the day on which the certificate is given.
2.	The extension of time given by subsection (1) does not limit any extension given by a court."
19		As detailed in the chronology above, pursuant to s 6 of the Amendment Act the Commission registered the plaintiff's alleged cause of action as a notifiable cause as recorded in the Certificate dated 15 April 1994.  The certificate names the employer as "Dept for Community Services."  There is no evidence that any other certificate issued in respect to this alleged cause of action nor does it appear that any steps were taken to amend the Certificate (if that is possible) so as to name the employer viz The State of Western Australia, the defendant in this action.
20		The plaintiff's claim was capable of being dealt with under the transitional arrangements of the Amendment Act.  If the plaintiff did not or could not comply with those transitional requirements she was obliged to seek leave pursuant to s 93D(4) of the Act before commencing her action.  She did not do so.  The plaintiff failed to comply with the transitional arrangements in the following respects:
(i)	This action (against The State of Western Australia) was not commenced within 90 days of receipt of the Certificate.  Even if it were accepted that the Certificate dated 15 April 1994 was sufficient so far as the named employer is concerned (which I do not accept in any event) then s 11 required that this action be commenced no later than mid July 1994.  It was not commenced until leave was granted on 11 January 1996.
(ii)	The plaintiff did not then file the Certificate in this action within 90 days of receipt of the Certificate.  Again there has been no compliance with s 11.
21		In support of this application it was the plaintiff's contention that s 15(2) of the Amendment Act reserves the right of the Court to extend the time for filing of the Certificate of Registration in line with the time for bringing of proceedings.  For that proposition reliance is had on Snowden v City of Melville (supra).  That argument cannot be sustained in light of subsequent decisions.  This view was rejected in Shooter v Minister for Education (1994) 11 SR (WA) 265; Jumeau v Water Authority of Western Australia (1994) 11 SR (WA) 293; Irrera v State of Western Australia (1994) 11 SR (WA) 360.  Suffice it to say that I find myself in agreement with the reasons expressed in those later decisions.  It follows I am of the view that s 15(2) does not confer on the Court a power to extend the time within which to file a certificate.
22		Having determined that issue against the plaintiff disposes of the application.  Even so it is worth making the following observations insofar as the plaintiff's further submissions are concerned.
23		The plaintiff contended that the time limits presented by the transitional provisions  did not take account of the need in the case of actions by employees against State or Local Government instrumentalities to obtain the Court's leave prior to action being commenced.  That proposition clearly has no support when regard is had to the number of reported cases which did involve either this defendant or State of Local Government instrumentalities.  In any event no evidence was put before the Court on this application, eg by way of affidavit from the former solicitors as to what, if any, difficulties the time limits might have caused insofar as this plaintiff's claim is concerned.
24		Furthermore, the plaintiff craved this Court's indulgence on the basis that:
(i)	the former solicitors did obtain a Certificate of Common Law Registration on 15 April 1994 (albeit that it did not name the correct employer).
(ii)	a Writ was issued on 27 May 1994 within 90 days of the Certificate being obtained (action 3525 of 1994) (which incorrectly named the defendant as the Department of Community Services) and
(iii)	this action against the State of Western Australia was commenced with leave on 11 January 1996, some 21 months after the Certificate was obtained.
25		The plaintiff submits that there was compliance with the requirements of s 17 and s 11 of the Amendment Act "but for the technical error of failing to obtain leave under the Crown Suits Act".  Firstly it was not a mere "technical error" as suggested.  At the time when the Writ issued the law had been clearly stated.  No matter what the practice prior to Pilbara Iron Ltd v Bonotto (supra), the requirement that leave be obtained before an action was commenced was unequivocal.  Secondly the action was flawed in that the wrong party was named as employer on the Certificate and likewise the proceedings were issued against the wrong party.  Thirdly the substantial delay is largely unexplained and in those circumstances it is not appropriate for the Court to grant its indulgences in any event.
26		Section 6(3) of the Amendment Act precludes the Commission from registering a notifiable cause after 30 June 1994.  As I have indicated earlier there is no evidence that the Commission was notified before the cut off date of this alleged cause of action against the State of Western Australia.  It is not competent for a Certificate of Registration to now issue.  The consequence of that is that the various transitional requirements cannot in any event be complied with and therefore this action is fatally flawed.
27		The plaintiff's application will be dismissed.  It will follow as a consequence of the foregoing that so too this present action it being a nullity for failure to comply with the transitional requirements should also be dismissed.