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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Workers Compensation and Injury
Management Amendment (Common Law
Election Validation) Bill 2024
Contents
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Part 16 inserted 2
Part 16 -- Validation
710. Terms used 2
711. Validated elections 3
712. Election considered in Neville v Choice
One Pty Ltd 5
713. Court proceedings struck out, stayed or
dismissed before validation day 6
714. Court proceedings discontinued before
validation day 7
715. Second election made under Part 7 of this
Act 8
716. No right of recovery for compensation paid 9
191--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Workers Compensation and Injury
Management Amendment (Common Law
Election Validation) Bill 2024
A Bill for
An Act to amend the Workers Compensation and Injury Management
Act 2023.
The Parliament of Western Australia enacts as follows:
page 1
Workers Compensation and Injury Management Amendment (Common
Law Election Validation) Bill 2024
s. 1
1 1. Short title
2 This is the Workers Compensation and Injury Management
3 Amendment (Common Law Election Validation) Act 2024.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act -- on the day after that day.
9 3. Act amended
10 This Act amends the Workers Compensation and Injury
11 Management Act 2023.
12 4. Part 16 inserted
13 After section 709 insert:
14
15 Part 16 -- Validation
16 710. Terms used
17 (1) In this Part --
18 agreement means an agreement referred to in
19 section 93L(2)(a) of the former Act before 1 July 2024;
20 assessment means an assessment referred to in
21 section 93L(2)(b) of the former Act before 1 July 2024;
22 Director has the meaning given in section 5(1) of the
23 former Act before 1 July 2024;
24 extended limitation period means the period of
25 12 months beginning on validation day;
page 2
Workers Compensation and Injury Management Amendment (Common
Law Election Validation) Bill 2024
s. 4
1 former Act means the Workers' Compensation and
2 Injury Management Act 1981 (including subsidiary
3 legislation made under that Act, unless otherwise
4 indicated);
5 Neville v Choice One Pty Ltd means the decision of
6 the Court of Appeal in Neville v Choice One Pty Ltd
7 [2024] WASCA 104;
8 transitional period means the period beginning on
9 5 September 2024 and ending on the day before
10 validation day;
11 validated election has the meaning given in
12 subsection (2), subject to section 712;
13 validation day means the day on which the Workers
14 Compensation and Injury Management Amendment
15 (Common Law Election Validation) Act 2024 section 3
16 comes into operation.
17 (2) A validated election is an election purportedly made
18 before 1 July 2024 under section 93K(4)(a) of the
19 former Act if --
20 (a) before 1 July 2024, the Director recorded the
21 required agreement or assessment under
22 section 93L(2) of the former Act; but
23 (b) the Director did not do so before the election
24 was purportedly made.
25 711. Validated elections
26 (1) A validated election --
27 (a) is taken to have been, at all times before
28 validation day, as lawful, valid and effective as
29 it would have been had the Director recorded
30 the required agreement or assessment under
31 section 93L(2) of the former Act before the
32 validated election was purportedly made; and
page 3
Workers Compensation and Injury Management Amendment (Common
Law Election Validation) Bill 2024
s. 4
1 (b) is taken to be, at all times on and after
2 validation day, as lawful, valid and effective as
3 it would be had the Director recorded the
4 required agreement or assessment under
5 section 93L(2) of the former Act before the
6 validated election was purportedly made.
7 (2) Subsections (3) to (7) --
8 (a) supplement subsection (1); and
9 (b) are not to be construed as limiting the effect of
10 subsection (1) or each other.
11 (3) The former Act, as in force at any time before
12 1 July 2024 or as it continues to apply at any time on or
13 after 1 July 2024 under Part 14 of this Act or
14 otherwise, is taken to have had, or to have, the same
15 effect at that time as if the Director had recorded the
16 required agreement or assessment under section 93L(2)
17 of the former Act before the validated election was
18 purportedly made.
19 (4) Any written law (including this Act) in force at any
20 time before, on or after validation day is taken to have
21 had, or to have, the same effect at that time as if the
22 Director had recorded the required agreement or
23 assessment under section 93L(2) of the former Act
24 before the validated election was purportedly made.
25 (5) Anything done, or purportedly done, before, on or after
26 validation day is taken to be, and to have always been,
27 as lawful, valid and effective as it would be, or would
28 have been, had the Director recorded the required
29 agreement or assessment under section 93L(2) of the
30 former Act before the validated election was
31 purportedly made.
32 (6) In subsection (5), a reference to the doing of anything
33 includes a reference to an omission to do anything.
page 4
Workers Compensation and Injury Management Amendment (Common
Law Election Validation) Bill 2024
s. 4
1 (7) The functions, rights, obligations and liabilities of the
2 State, and of all persons and bodies, are taken to be,
3 and to have always been, the same as if the Director
4 had recorded the required agreement or assessment
5 under section 93L(2) of the former Act before the
6 validated election was purportedly made.
7 (8) Without limiting the effect of this section, this section
8 has effect for the purposes of --
9 (a) any court proceedings seeking damages in
10 reliance on the validated election --
11 (i) that were commenced before validation
12 day but were not finalised before
13 validation day (by judgment, settlement,
14 dismissal, discontinuance or otherwise);
15 or
16 (ii) that are commenced on or after
17 validation day;
18 and
19 (b) any appeal proceedings in respect of court
20 proceedings seeking damages in reliance on the
21 validated election if the appeal proceedings --
22 (i) were commenced before validation day
23 but were not finalised before validation
24 day; or
25 (ii) are commenced on or after validation
26 day.
27 712. Election considered in Neville v Choice One Pty Ltd
28 The election purportedly made on 28 March 2019 that
29 was considered in Neville v Choice One Pty Ltd is not a
30 validated election.
page 5
Workers Compensation and Injury Management Amendment (Common
Law Election Validation) Bill 2024
s. 4
1 713. Court proceedings struck out, stayed or dismissed
2 before validation day
3 (1) This section applies if, before validation day --
4 (a) court proceedings were commenced seeking
5 damages in reliance on a validated election; and
6 (b) the court proceedings were struck out, stayed or
7 dismissed by the court on the ground that the
8 Director did not record the required agreement
9 or assessment under section 93L(2) of the
10 former Act before the validated election was
11 purportedly made.
12 (2) On or after validation day, if the court, on an
13 application made by the person seeking damages, is
14 satisfied that it is just and reasonable to do so, the court
15 may, on whatever terms it thinks fit, set aside or vary
16 the order that struck out, stayed or dismissed the court
17 proceedings.
18 (3) Alternatively, or if the court refuses to act under
19 subsection (2) on an application, new court
20 proceedings seeking damages in reliance on the
21 validated election may be commenced on or after
22 validation day under Part 7 Divisions 1 to 4 of this Act
23 as provided for under Part 14 of this Act.
24 (4) Subsection (5) applies to commencing new court
25 proceedings under subsection (3) if the period of
26 3 years referred to in the Limitation Act 2005
27 section 14(1) that, apart from subsection (5), would
28 apply to commencing the court proceedings --
29 (a) expired before validation day; or
30 (b) expires on or after validation day but before the
31 extended limitation period expires.
page 6
Workers Compensation and Injury Management Amendment (Common
Law Election Validation) Bill 2024
s. 4
1 (5) The Limitation Act 2005 applies as if section 14(1) of
2 that Act referred to the extended limitation period
3 instead of the period of 3 years.
4 (6) If the court acts under subsection (2) or new court
5 proceedings are commenced under subsection (3), the
6 Law Reform (Miscellaneous Provisions) Act 1941
7 section 4 applies for the purposes of the recommenced
8 or new proceedings disregarding any requirement in
9 that section that proceedings were pending at the time
10 of death.
11 714. Court proceedings discontinued before validation
12 day
13 (1) This section applies if --
14 (a) court proceedings were commenced before
15 validation day seeking damages in reliance on a
16 validated election; and
17 (b) during the transitional period, the court
18 proceedings were discontinued by the person
19 seeking the damages.
20 (2) On or after validation day, the court may, on an
21 application made by the person seeking damages, allow
22 the discontinuance of the court proceedings to be
23 withdrawn on whatever terms the court thinks fit if the
24 court is satisfied that --
25 (a) it is just and reasonable to do so; and
26 (b) the court proceedings were discontinued on the
27 ground that the Director did not record the
28 required agreement or assessment under
29 section 93L(2) of the former Act before the
30 validated election was purportedly made.
page 7
Workers Compensation and Injury Management Amendment (Common
Law Election Validation) Bill 2024
s. 4
1 (3) Alternatively, or if the court refuses to act under
2 subsection (2) on an application, new court
3 proceedings seeking damages in reliance on the
4 validated election may be commenced on or after
5 validation day under Part 7 Divisions 1 to 4 of this Act
6 as provided for under Part 14 of this Act.
7 (4) Subsection (5) applies to commencing new court
8 proceedings under subsection (3) if the period of
9 3 years referred to in the Limitation Act 2005
10 section 14(1) that, apart from subsection (5), would
11 apply to commencing the court proceedings --
12 (a) expired before validation day; or
13 (b) expires on or after validation day but before the
14 extended limitation period expires.
15 (5) The Limitation Act 2005 applies as if section 14(1) of
16 that Act referred to the extended limitation period
17 instead of the period of 3 years.
18 (6) If the court acts under subsection (2) or new court
19 proceedings are commenced under subsection (3), the
20 Law Reform (Miscellaneous Provisions) Act 1941
21 section 4 applies for the purposes of the recommenced
22 or new proceedings disregarding any requirement in
23 that section that proceedings were pending at the time
24 of death.
25 715. Second election made under Part 7 of this Act
26 (1) This section applies in relation to a validated election
27 if, during the transitional period, the person who
28 purportedly made the validated election made an
29 election (the second election) under Part 7 of this Act
30 to retain the right to seek damages in respect of the
31 injury that was the subject of the validated election.
page 8
Workers Compensation and Injury Management Amendment (Common
Law Election Validation) Bill 2024
s. 4
1 (2) The application of section 711 to the validated
2 election --
3 (a) does not affect any of the following --
4 (i) the second election;
5 (ii) the application of Part 7 of this Act in
6 relation to, or in consequence of, the
7 second election;
8 (iii) the registration of the second election
9 under Part 7 of this Act, despite
10 section 421(6) of this Act;
11 (iv) any court proceedings seeking damages
12 in reliance on the second election that
13 were commenced before validation day;
14 and
15 (b) does not prevent the commencement of court
16 proceedings on or after validation day seeking
17 damages in reliance on the second election and,
18 if such court proceedings are commenced, does
19 not affect the court proceedings; and
20 (c) does not prevent damages being awarded in
21 court proceedings referred to in
22 paragraph (a)(iv) or (b).
23 716. No right of recovery for compensation paid
24 (1) This section applies to a person who purportedly made
25 a validated election if, during the transitional period, an
26 amount of compensation was paid to the person under
27 Part 2 of this Act in respect of the injury that was the
28 subject of the validated election.
page 9
Workers Compensation and Injury Management Amendment (Common
Law Election Validation) Bill 2024
s. 4
1 (2) Despite the application of section 711 to the validated
2 election, the amount of compensation is not
3 recoverable from the person.
4
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