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[1975] PNGLR 185 - Ciesla v Bougainville Copper Ltd.
[1975] PNGLR 185
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
ERICH ADOLF CIESLA
V
BOUGAINVILLE COPPER LIMITED
Port Moresby
Williams J
18-19 June 1975
15 September 1975
STATUTES - Retrospective operation - Substantive rights affected - Workers’ compensation legislation - Provision requiring common law proceedings to be instituted within 12 months of first payment of compensation - Repeal of provision - Effect of Acts Interpretation Act 1949-1968, s. 44[ccxxxii]1 - Workers Compensation Act, s. 15a (2)[ccxxxiii]2.
Section 15a(2) of the Workers’ Compensation Act 1958 provided that where a worker received workers compensation under the Act in respect of an accident “he shall not bring an action against the employer for damages in respect of that accident, unless ... (b) he commences that action within twelve months after he receives that compensation or that first payment”.
Section 15a(2) was repealed by the Workers’ Compensation (Increased Benefits) Act 1973 effective from 29th November, 1973.
The plaintiff instituted proceedings to recover damages arising out of an industrial accident on 1st August, 1972, by writ of summons issued on 19th October, 1973, which was outside the twelve months prescribed by s. 15a(2) (the last payment having been made on 8th September, 1972) and before the repeal of s. 15a(2) became effective.
Held
(1) the Workers’ Compensation (Increased Benefits) Act 1973 in repealing s. 15a(2) of the Workers’ Compensation Act 1958 did not effect a change of a purely procedural character but one which affected substantive rights.
(2) Upon the expiration of the limitation period of twelve months in s. 15a(2) of the Workers’ Compensation Act 1958 the plaintiff was barred from bringing his common law action, and applying s. 44 of the Acts Interpretation Act 1949-1968, the subsequent repeal of s. 15a(2) did not operate so as to revive a liability which had terminated.
Maxwell v. Murphy [1957] HCA 7; (1956-57), 96 C.L.R. 261 at pp. 266-8 and 277, 278; Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [1959] HCA 40; (1959), 101 C.L.R. 629 at p. 648, Australian Iron & Steel Ltd. v. Hoogland [1962] HCA 13; (1961-62), 108 C.L.R. 471 at pp. 475, 476, 489, and Yrttiaho v. The Public Curator of Queensland [1971] HCA 29; (1971), 125 C.L.R. 228 at p. 242 referred to.
Action
This was a common law action for damages arising out of an industrial accident on 1st August, 1972. The pleadings alleged that the plaintiff was barred from bringing the action by reason of s. 15a of the Workers’ Compensation Act 1958 which was repealed by the Workers’ Compensation (Increased Benefits) Act 1973, the repeal becoming effective after the writ was issued. The case is reported on the jurisdiction point only.
Counsel
R. R. Douglas and J W. McMaster, for the plaintiff.
R. H. B. Wood, for the defendant.
Cur. adv. vult.
15 September 1975
WILLIAMS J: This is an action for damages arising out of an industrial accident at Panguna on 1st August, 1972.
The pleadings raise the question as to whether the plaintiff is barred from bringing this action by reason of a provision of the Workers’ Compensation Act. Section 15a[ccxxxiv]3 was introduced into that Act in 1959.
However, s. 15a was amended by the Workers’ Compensation (Increased Benefits) Act 1973 by the omission of sub-ss. (2) and (3). The amending Act came into operation on 29th November, 1973.
Evidence was adduced at the trial, which I accept, that the plaintiff on 8th September, 1972 received from the defendant a cheque which included an amount of $224.84 workers’ compensation paid pursuant to the Workers’ Compensation Act. This was the first payment of workers’ compensation made to him in respect of the accident which gives rise to these proceedings.
The writ of summons commencing this action was issued on 19th October, 1973 and thus outside the period of twelve months prescribed by s. 15a(2)(b) of the Workers’ Compensation Act. It was also issued before the amending Act which repealed s. 15a(2)(b) came into operation.
For the defendant it was submitted that as the time limitation had passed before the action was commenced that the defendant then acquired an immunity from liability. The subsequent repeal of the statute creating the time limitation did not operate so as to revive a liability which had been terminated. Reliance was placed upon several decisions of the High Court of Australia to which I shall later refer.
For the plaintiff reliance was placed upon the principles set forth in par. 619 of Clerk & Lindsell on Torts (13th ed.). In this paragraph it is stated that the Limitation Act (U.K.) did not extinguish the right of a plaintiff but merely barred his remedy. The Act is in fact procedural. Reference was also made to Maxwell on Interpretation of Statutes (12th ed.) p. 222 et seq. and the authorities therein referred to. It is there stated that the presumption against the retrospective operation of a statute has no application to enactments which affect only the practice and the procedure of the courts. It was submitted that the effect of the Act amending the Workers’ Compensation Act was procedural only and did not operate so as to affect any substantive right of the defendant.
It seems to me that the question is one of statutory construction and is one that (although not referred to in argument) is governed by the provision of s. 44[ccxxxv]4 of the Acts Interpretation Act 1949-1968.
In considering the application of this section it seems to me necessary first to examine the position of the parties as matters stood immediately before the amending Act came into operation. In this respect I think that much assistance may be obtained from several decisions of the High Court of Australia. These decisions do not turn around statutory provisions the equivalent of s. 44 but rather around the common law principles relating to the effect of the repeal of a statute.
Reference might first be made to Maxwell v. Murphy[ccxxxvi]5. That case was concerned with an action under the Compensation to Relatives Act, 1897-1946 (N.S.W.) which provided that every action under the Act should be commenced within twelve months of the death of the deceased person. Section 2 (a) of the Compensation to Relatives (Amendment) Act, 1953 amended the principal Act as from 16th December, 1953 by providing that the words “twelve months” be omitted and the words “six years” inserted. On 30th November, 1954 the plaintiff brought an action in respect of the death of her husband on 19th March, 1951. A Full Court of the High Court of Australia by a majority held that the amendment did not operate to revive the plaintiff’s right to maintain an action which had been barred from 19th March, 1952.
As was contended by counsel for the plaintiff some different considerations arose in Maxwell v. Murphy[ccxxxvii]6. In that case, unlike the present, the Compensation to Relatives Act itself created the right of action. In the present case the cause of action arises at common law. However, I think there are to be found in the judgments in Maxwell v. Murphy[ccxxxviii]7 some statements of principle which are of assistance in the resolution of the present problem.
DIXON CJ (at pp. 266, 267) after stating that the provisions of the Interpretation Act of New South Wales relating to the repeal of statutes had no application proceeded to state the common law in these terms:
“In the first place it must be borne in mind that at common law the repeal of a statute or statutory provision means that the law must be applied as if the provision had never existed. This is subject to an exception, variously expressed, as to past matters. Lord Tenterden CJ used the expression ‘transactions past and closed’: Surtees v. Ellison ((1829) [1829] EngR 594; 9 B. & C. 750, at p. 752; [1829] EngR 594; 109 E.R. 278, at p. 279). Lord Campbell CJ said: ‘... all matters that have taken place under it before its repeal are valid and cannot be called in question’: Reg. v. Inhabitants of Denton ((1852) Dears. 3, at p. 8; [1852] EngR 59; 169 E.R. 612, at p. 614). The phrase of Blackburn J was ‘transactions already completed under it’ — Butcher v. Henderson ((1868) L.R. 3 Q.B. 335, at p. 338).
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.”
He went on to say (at p. 268 and p. 269):
“To say that notionally the right to damages continued to exist and only the manner of enforcing the right had been destroyed appears to me to ignore that fact that the right to damages could not be separated from the right to recover them. There are rights in English law which have an existence and a purpose although the remedy be suspended or wanting. But the right here in question is not one of them. If the amending statute received the operation for which the appellant contends, it would impose anew a liability that had ceased to exist. The presumptive interpretation is against such an operation.”
Williams J at pp. 277, 278) when considering the retrospective operation of statutes said:
“Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action the abridgement might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.”
I advert now to Chang Jeeng v. Nuffield (Australia) Pty. Ltd.[ccxxxix]8. It was a case like the present; concerned with time limitations in bringing a common law action for damages where the claimant had received benefits under workers’ compensation legislation. Chang Jeeng was injured in April, 1953 and received a payment of compensation from his employer on 1st May, 1953. Under the Workers’ Compensation Act (N.S.W.) as it stood at that time it was necessary that a common law claim be brought within twelve months of the receipt of the first payment of compensation, that is, by 1st May, 1954. There was, however, a proviso whereby he could apply to the Court for an extension of time within the period of twelve months from the date of the receipt of the first payment of compensation or within twelve months thereafter. In consequence he could have applied for an extension of time up to 1st May, 1955. However, he applied for an extension of time on 12th December, 1966. The Act was amended with effect from 20th November, 1953 to enlarge the original limitation period of twelve months to three years but left unchanged the period of twelve months after the period of limitation within which to apply for an extension of time. In effect, therefore, if the amending Act applied to Chang Jeeng’s case[ccxl]9 he had until 1st May, 1956 to bring his application for an extension of time.
A Full Court of the High Court of Australia, by a majority, held, that the action was not barred and that it was competent for the appellant to bring his application for an extension of time. The reasoning proceeds on the basis that, at the time of the introduction of the amending Act the original time limitation of twelve months had not run. In consequence the right to sue had not been barred and no question of its revival arose. There is in the judgment of Menzies J a passage at pp. 648-9 which appears to me to be of assistance in the present case. It is as follows:
“I have no doubt that, this being the choice, s. 63, as amended, applies, and I would observe that to regard it in this way is not to give it any retrospective effect. In Maxwell v. Murphy ((1957) [1957] HCA 7; 96 C.L.R. 261) Dixon CJ said:—’The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.’ ((1957) 96 C.L.R., at p. 267). The operation that I would give to the amendment would not depart from this general rule but would treat the legal consequences of the operation of the unamended provision as unaffected, leaving the amended provision to apply to the extent to which a worker’s action had not been finally barred. If, however, it were sought to apply the sub-section, as amended, to a case where the first payment of compensation had been received more than two years before the 20th November, then it would be sought to use the amendment to revive an action completely barred. As at present advised, I think the sub-section, as amended, should not be given such an operation: Maxwell v. Murphy ((1957) [1957] HCA 7; 96 C.L.R. 261).”
It should here be noted that the last two sentences in the passage just quoted expressed a view to which Dixon CJ in Australian Iron & Steel Ltd. v. Hoogland[ccxli]10 was “prepared unreservedly to subscribe”.
Australian Iron & Steel Ltd. v. Hoogland[ccxlii]11 was another case involving the effect upon amendment to time limitation in bringing an action for common law damages after receipt of workers’ compensation benefits. In that case Hoogland was injured on 10th September, 1952 and received his first payment of compensation on l6th October, 1952. At that time it was necessary to bring an action within twelve months of the date of receipt of the first payment of compensation. Pursuant to a proviso an application to the Court to extend that time could be made within the period of twelve months or within twelve months thereafter. By an amending Act which came into operation on 20th November, 1953 the original limitation was extended from twelve months to three years. The time for making an application for an extension of time remained at twelve months but ran from twelve months after the expiry of the new three year period. Hoogland made an application for extension of time on 7th September, 1956. At the time when the amending statute came into force, viz. 20th November, 1953, Hoogland was still within time to make an application for an extension of time under the legislation as it stood before the amendment. The High Court, by a majority, held that Hoogland’s application made on 7th September, 1956 was competent and Dixon CJ at p. 476 said:
“On the whole I think that the correct view to apply is that until the substantive right is completely lost by the final extinguishment of all remedy its subsistence should be recognized and the enlargement of the period of limitation upon the remedy treated as applicable to it. The consequence of course is that the limitation of time of twelve months for making an application for extension is carried forward so that it commences to run at the end of three years from the first payment of compensation.”
Windeyer J at p. 489 made the following observations:
“When time has run against a purely personal action the result, for a plaintiff, is that his remedy is barred but his cause of action is not extinguished; for a defendant, it is that he has, if he chooses to assert it, an immunity which Lord Esher called ‘his existing right to the benefit of the Statute of Limitations’ (Hewett v. Barr [1890] UKLawRpKQB 176; [1891] 1 Q.B. 98, at p. 99). What then were the rights of the parties in this case immediately before the amending Act was passed? For Hoogland, the prescribed period, then twelve months, within which he could have brought an action as of right had already passed; but he could still apply for an extension of the prescribed period, for twelve months from the end of that period had not yet passed. For the appellant, it could not be subjected to an action unless either it waived the defence that the prescribed period had expired or that period was extended. So that at the time when the amendment came into force the respondent’s cause of action had not been extinguished, his remedy had not been finally barred, the appellant had not gained an absolute immunity from suit and the respondent still could apply for an extension of time to put his cause of action in suit.”
I turn now to Yrttiaho v. The Public Curator of Queensland[ccxliii]12. That case was concerned with the effect of an amendment to the Rules of Court of the Supreme Court of Queensland relating to the taking of a fresh step in a proceeding where no step had been taken in the proceeding for six years. The amendment reduced the six year period to three years. The case is, I think, useful in the present context because of the discussion in the judgments of the cases to which I have already made reference, viz. Maxwell v. Murphy[ccxliv]13, Chang Jeeng’s case[ccxlv]14 and Hoogland’s case[ccxlvi]15. It was held that the amendment to the Rules was of a procedural character and hence, according to the rules of common law concerning the retrospective operation of amending statutes, the presumption that the amendment ought not to be understood as applying to events which occurred before the commencement was displaced. The leading judgment was given by Gibbs J In discussing the question of whether a statute was one which affected vested rights as distinct from affecting purely procedural changes his Honour cited with approval the passage from the judgment of Williams J in Maxwell v. Murphy[ccxlvii]16, which I have already quoted. He went on to say that the reasoning of Dixon CJ in Chang Jeeng’s case[ccxlviii]17, suggested that he recognised a similar distinction. Gibbs J then went on to say (at p. 242):
“It is in my opinion a valid distinction, and the decisions are consistent with it, even when they do not expressly recognize it. The authorities support the view that an amendment to a Statute of Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought. In these circumstances the substantive rights of the parties are not affected by the alteration of the limitation period.”
It seems that Barwick CJ (at p. 230) agreed with this part of the judgment of Gibbs J, as did Windeyer J (at p. 236) and Walsh J (at p. 236).
In the present case the statute, before its amendment, imposed a time limitation of twelve months from the date of the receipt of the first payment of workers’ compensation. Unlike the New South Wales statute under consideration in Chang Jeeng’s case[ccxlix]18 and Hoogland’s case[ccl]19 there was no provision whereby application for the extension of this time might be made. As I have stated earlier, the writ of summons was issued in this matter after the expiry of the limitation period of twelve months and before the amendment which repealed the provision for a statutory limitation. It seems to me to accord with the principles enunciated by the High Court of Australia, to which I have referred, to say that the amending Act of 29th November, 1973 did not affect a change of a purely procedural character. Rather it was one which affected the substantive rights of the parties.
In my view the position was reached that upon the expiration of the limitation period of twelve months the plaintiff was barred from bringing his action and if the amending statute received the meaning for which the plaintiff contends then the effect would be to impose a new liability in the place of the one that had become barred. This operation would, it seems to me, be contrary to the provisions of s. 44 of the Acts Interpretation Act in that it would affect the operation of the Workers’ Compensation Act before the repeal of s. 15a(2)(b), or would affect the right accrued to the defendant to plead the statutory limitation as a complete bar to the action. Section 44 is, of course, governed by the words “unless the contrary intention appears”. I see nothing in the amending Act to show any intention to revive actions which had become barred. The sub-section imposing the time limitation was merely repealed without any saving words. The amending Statute bore the title “Workers’ Compensation (Increased Benefits) Act”. By its provisions benefits to workers were increased. But I see nothing to suggest that it was intended to confer benefits upon workers whose rights had become barred. In my view the defendant’s contention that his action is barred should be upheld.
I was informed by counsel for the parties that this point is of importance not only in the present case but also has application to a number of other pending cases and in these circumstances it is probable that the decision of a Full Court of this Court will be sought in the matter. It was suggested by counsel that in the event that a Full Court may take a different view of the limitation question it may ultimately save costs to the present parties if I went on to decide the matter on its merits. This I now propose to do.
At the outset there is another preliminary issue. The plaintiff did not give the notice required to be given by s. 15a(2)(a). Upon the evidence the plaintiff was in and out of hospital for a substantial part of the six months period. He stated that he was not aware that he was required to give this notice. He stated that he instructed solicitors in Adelaide regarding his claim but apparently they took no action in the matter. It does not appear that any prejudice accrued to the defendant by reason of the plaintiff’s omission as the defendant’s agents were fully aware of the circumstances surrounding the plaintiff’s accident. In the circumstances I find that the failure to give the notice was occasioned by mistake and other reasonable cause.
His Honour then dealt with the circumstances surrounding the accident and found that the risk of an accident such as that which occurred (having a stack of boxes upon which the plaintiff was required to climb to inspect the contents, collapse beneath him) was reasonably foreseeable and that the defendant’s system of work did not guard against this, and that in all the circumstances the plaintiff’s claim should be upheld.
His Honour then proceeded to an assessment of damages awarding $25,000.00.
Action barred: orders accordingly.
Solicitors for the plaintiff: Williams & Williams.
Solicitors for the defendant: McCubbery, Train, Love & Thomas.
<
[ccxxxii]Footnote p. 187.
[ccxxxiii]Footnote p. 186.
[ccxxxiv]Section 15a provides, inter alia:--
15a.--
(1) Except as expressly provided in this Ordinance, nothing in this Ordinance shall affect any liability which exists independently of this Ordinance.
(2) Subject to this section, where a worker receives compensation under this Ordinance in respect of an accident, he shall not bring an action against the employer for damages in respect of that accident, unless --
(a) he gives to the employer, within six months after he receives that compensation or the first payment of that compensation if more than one payment is made, written notice of his intention to bring that action; and
(b) he commences that action within twelve months after he receives that compensation or that first payment.
(3) Failure to give notice in accordance with the provisions of the last preceding subsection shall not be a bar to the maintenance of an action referred to in that subsection, if it is found in the action that the failure was occasioned by mistake, absence from the Territory or other reasonable cause.
...
[ccxxxv]Section 44 of the Acts Interpretation Act 1949-1968 provides:--
44. Where an Ordinance repeals in the whole or in part a former Ordinance, then, unless the contrary intention appears, the repeal shall not --
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the Ordinance so repealed, or anything duly done or suffered under the Ordinance so repealed; or
(c) affect any right, privilege, obligation or liability acquired, accrued, or incurred under the Ordinance so repealed; or
(d) affect any penalty, forfeiture, or punishment incurred in respect of an offence committed against the Ordinance so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment,`
and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and that penalty, forfeiture, or punishment may be imposed, as if the repealing Ordinance had not been passed.
[ccxxxvi](1957) 96 C.L.R. 261.
[ccxxxvii](1957) 96 C.L.R. 261.
[ccxxxviii](1957) 96 C.L.R. 261.
[ccxxxix](1959) 101 C.L.R. 629.
[ccxl](1959) 101 C.L.R. 629.
[ccxli][1962] HCA 13; (1962) 108 C.L.R. 471, at p. 475.
[ccxlii](1962) 108 C.L.R. 471.
[ccxliii](1971) 125 C.L.R. 228.
[ccxliv](1957) 96 C.L.R. 261.
[ccxlv](1959) 101 C.L.R. 629.
[ccxlvi](1962) 108 C.L.R. 471.
[ccxlvii][1957] HCA 7; (1957) 96 C.L.R. 261, at p. 277.
[ccxlviii](1959) 101 C.L.R. 629.
[ccxlix](1959) 101 C.L.R. 629.
[ccl][1962] HCA 13; (1962) 108 C.L.R. 471.
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