van Oostveen v Commonwealth of Australia [1998] FCA 465

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 180 of 1996

BETWEEN: WILLIAM VAN OOSTVEEN

Applicant

AND: commonwealth of Australia

Respondent

JUDGE: DRUMMOND J

DATE OF ORDER: 24 APRIL 1998

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application be struck out and dismissed. 2. The applicant pay the respondent's costs of and incidental to this action. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 180 of 1996

BETWEEN: WILLIAM VAN OOSTVEEN

Applicant

AND: commonwealth of australia

Respondent

JUDGE: DRUMMOND J

DATE: 24 APRIL 1998

PLACE: BRISBANE

REASONS FOR JUDGMENT

I have before me a notice of motion by the Commonwealth of Australia, the respondent in the action commenced against it by Mr Van Oostveen, seeking, among other things, an order striking out the action.

In October 1996 Mr Van Oostveen filed an amended application and an amended statement of claim in this action. In the statement of claim he alleges that by reason of certain events that occurred and certain conduct to which he was subjected, which amount to either a breach of his contract of employment and/or negligence on the part of the Commonwealth as his employer, he suffered an anxiety and stress condition. He claims damages in respect of past and future economic and non-economic loss in respect of that injury.

The Commonwealth responds by saying that this action is barred by s 44 the Safety Rehabilitation and Compensation Act 1998 (Cth). That provision does, in my opinion, operate to bar Mr Van Oostveen's action, unless he can bring himself within the qualification to that bar contained in s 45 of the Act. In order to show that his action is within the qualification provided for by s 45, Mr Van Oostveen has to show, firstly, that the subject matter of his claim in the action is one in respect of which compensation is payable, under ss 24, 25 or 27 of the Act, to him in respect of an injury suffered by him in his capacity as an employee of the Commonwealth; secondly, that the circumstances in which the injury was suffered is one in which the Commonwealth would be liable for damages for non-economic loss but for s 44 of the Act; and finally, that he has given a notice in writing of his election to institute the action that is presently before me.

The law is as yet unsettled in relation to when it can be said that compensation is payable under ss 24, 25, or 27, within the meaning of that expression in s 45(1)(a) of the Act; see the discussion of the conflicting cases in Annotated Safety Rehabilitation and Compensation Act 1988, 3rd Ed, by John Ballard at p 183 and following. However, in order to show that s 44 does not bar the present action against the Commonwealth, Mr Van Oostveen has the burden of showing that all three requirements of s 45 are satisfied. If there is any one of those requirements that is not satisfied, the bar operates.

The requirements as to a valid notice of election imposed by s 45 are clear in so far as they govern what must be done to demonstrate that an effective notice has been given. In both the Court of Appeal in New South Wales and the Court of Appeal in Queensland, it has been held that the giving of such a notice is, in effect, a statutory condition precedent to the claimant having a valid cause of action for damages against the Commonwealth: see Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 and Commonwealth of Australia v Grogan (Court of Appeal, 12 August 1997, unreported) and, in particular, the judgment of Davies JA at 5, with whom McPherson JA agreed.

Mr Van Oostveen has had ample opportunity to deal with the Commonwealth's contention that he cannot save this action from the s 44 bar, because he has never given an appropriate notice of election. The matter was raised back on 22 November at a directions conducted by Spender J, when the solicitor for the Commonwealth very clearly put Mr Van Oostveen on notice of the problem he had for want of a notice of election.

The Commonwealth filed the notice of motion now before me as long ago as February and it was promptly served on Mr Van Oostveen. There is no reason to think that he has not had full opportunity to turn his mind to and deal with this question.

It is no doubt the case that Mr Van Oostveen has given numerous notices to the Commonwealth as his former employer, including notices in respect of the injury the subject of his present action. At the end of argument he pointed me to what is now exhibit 5 as a document which might answer that description. His tender of that particular document illuminates to a degree the difficulties that I think Mr Van Oostveen has in grappling with this litigation.

He has made a number of claims for compensation and there has been voluminous correspondence between Mr Van Oostveen and various officers of the Commonwealth concerning claims to, among other things, a remedy in respect of the stress condition the subject of this particular action. In fact, his entitlement to compensation under the Act in respect of the stress injury, as well as certain other injuries, has been the subject of unsuccessful action by him in the AAT and in this Court, action which Mr Van Oostveen tells me is presently the subject of an appeal to the Full Court.

There is a fatal impediment to Mr Van Oostveen's action constituted by the absence of the kind of notice required by s 45(1). I will therefore make an order dismissing his application.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond

Associate: Dated: 24 April 1998

The applicant appeared in person.

Counsel for the Respondent: Mr PG Bickford

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 24 April 1998

Date of Judgment: 24 April 1998