St John Of God Health Inc v Austin (2014)

A worker issued proceedings in the District Court prior to an election being registered by the Director.

The employer applied for summary judgement on the basis that s93K (as it then was) required a Writ to be issued within thirty days of the election being registered. As the Writ was issued prior to the election being registered the Writ was, according to the employer, invalid.

The application for summary judgment was dismissed.

The employer appealed to His Honour Judge Bowden. Judge Bowden found that the employer was correct in its argument but that he could still grant leave to validate the writ issued on a retrospective basis.

The employer appealed against His Honour’s decision.

In a two one decision the Court of Appeal dismissed the Appeal.

It was found by majority that the terms within “thirty days” meant that proceedings could be issued no later than thirty days after the election was registered.
By majority therefore, it was found that the writ issued by the worker was a valid writ.

Although s93K has now been amended, by removing the necessity to issue proceedings within thirty days and therefore dealt with a different time limit issue, the decision arguably could mean that provided proceedings are issued within three years of the date of injury (to satisfy the Limitation Act) then they can be issued before the election is registered by the Director.
The election may therefore not be a pre-requisite according to the Court of Appeal to proceedings being issued.

This is different to the interpretation generally adopted that proceedings can only be issued after an election is registered and accordingly may have significant effect for common law claims.

This CASE LAW UPDATE is intended for general information only and you should not act upon it or omit to act on the basis of anything contained herein without first obtaining legal advice in relation to any particular matter or issue.

© Copyright 2013, SRB LEGAL – All Rights Reserved

Date: 15 January 2014
Should you require any further information relating to the above decision, please contact one of the following partners on telephone
(08) 9221 3110.