Adamson v Amb Engineering Pty Ltd
[2015] WADC 41
•23 APRIL 2015
ADAMSON -v- AMB ENGINEERING PTY LTD [2015] WADC 41
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 41 | |
| Case No: | CIV:2307/2013 | 10 APRIL 2015 | |
| Coram: | DEPUTY REGISTRAR KUBACZ | 23/04/15 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's application dismissed Defendant's application dismissed | ||
| PDF Version |
| Parties: | PAUL ANDREW ADAMSON AMB ENGINEERING PTY LTD |
Catchwords: | Practice and procedure Strikeout parts of defence Delay Trial of separate issue |
Legislation: | Rules of the Supreme Court (WA) 1971 Workers' Compensation and Injury Management Act (WA) 1981 |
Case References: | Allen v Gulf Oil Refinery Ltd [1981] AC 1001 Australia National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLE 441 Carlo Nobili S.p.A Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 Chenery & Anor v Conti [1999] WASCA 258 City of Swan v Lehman Bros Australia Ltd (2009) 73 ACSR 86 Dunstan v Simmie & Co Pty Ltd (1978) VR 669 Gardiner v Ray [1999] WASC 140 Nationwide News Pty Ltd v Moodie [2003] WASCA 273 Perre v Arpand Pty Ltd (1999) 198 CLR 180 Premier Gold NL v Ocean Resources NL (Unreported, WASC, Library No 940738, 14 December 1994) Roberman v Australian Broadcasting Corporation [2002] WASC 301 Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority & Fraser (1995) 129 ALR 401 Smith v Maloney (1998) 19 WAR 209 Stirling Marine Services Pty Ltd v Austral Piling & Construction Pty Ltd (Unreported; WASC; Library No 970620; 21 November 1997) Tepko Pty Ltd v Water Board (2001) 206 CLR 1 Terravision Pty Ltd v Black Box Control Pty Ltd [2014] WASC 261 Tilling v Whiteman [1980] AC 1 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
AMB ENGINEERING PTY LTD
Defendant
Catchwords:
Practice and procedure - Strikeout parts of defence - Delay - Trial of separate issue
Legislation:
Rules of the Supreme Court (WA) 1971
Workers' Compensation and Injury Management Act (WA) 1981
Result:
Plaintiff's application dismissed
Defendant's application dismissed
Representation:
Counsel:
Plaintiff : Mr A Klein
Defendant : Mr P Hopwood
Solicitors:
Plaintiff : Stephen Browne Lawyers
Defendant : Cocks Macnish
Case(s) referred to in judgment(s):
Allen v Gulf Oil Refining Ltd [1981] AC 1001
Australia National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411
Carlo Nobili S.p.A Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47
Chenery v Conti [1999] WASCA 258
City of Swan v Lehman Bros Australia Ltd (2009) 73 ACSR 86
Dunstan v Simmie & Co Pty Ltd [1978] VR 669
Gardiner v Ray [1999] WASC 140
Nationwide News Pty Ltd v Moodie [2003] WASCA 273
Perre v Apand Pty Ltd (1999) 198 CLR 180
Premier Gold NL v Ocean Resources NL (Unreported, WASC, Library No 940738, 14 December 1994)
Roberman v Australian Broadcasting Corporation [2002] WASC 301
Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority & Fraser (1995) 129 ALR 401
Smith v Maloney (1998) 19 WAR 209
Stirling Marine Services Pty Ltd v Austral Piling & Construction Pty Ltd (Unreported; WASC; Library No 970620; 21 November 1997)
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Terravision Pty Ltd v Black Box Control Pty Ltd [2014] WASC 261
Tilling v Whiteman [1980] AC 1
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161
1 DEPUTY REGISTRAR KUBACZ: There are two applications before the court. The first is the plaintiff's application filed on 16 February 2015 and subsequently amended on 10 April 2015 seeking leave to strike out parts of the defendant's amended defence, pursuant to O 21 r 19(1)(a), (b) and (c) of the Rules of the Supreme Court 1971 (the Rules).
2 The second is the defendant's application filed 20 February 2013, for orders for a question to be determined as a preliminary issue pursuant to O 32 r 4 of the Rules.
3 The uncontroversial fact of this case, for the purpose of these applications, is that the plaintiff sustained an injury whilst working from a dredging barge operated by the defendant in or about December 2010 to March 2011 (the Accident).
4 The contentious fact, again for the purpose of these applications, is who the plaintiff's employer was at the time of the Accident.
5 The plaintiff claims, in his statement of claim, that he was employed by the business Mercury Metal Products (Mercury Metals) and that he was labour hired to the defendant. The plaintiff was working under the defendant's control and supervision and was therefore injured due to the defendant's negligence.
6 The defendant in its amended defence claims that at the time of the Accident, it was the plaintiff's employer for the purposes of the Workers' Compensation and Injury Management Act 1981 (the Act). It further claims that given it was the employer and the plaintiff did not comply with the relevant sections of the Act, the plaintiff is now not entitled to seek damages from it.
7 Both parties agree that:
(a) the plaintiff commenced work with Mercury Metals in or about January 2009 as a boiler maker;
(b) the defendant owns and operates a small dredge barge at various remote mine sites in and around Western Australia;
(c) the directors/owners of the defendant are also the directors/owners of Mercury Metals (or are associated with the operation of both businesses);
(d) given the fluctuation in the amount of work that Mercury Metals has on at any one time and given the irregularity of the defendants work, employees of Mercury Metals are offered extra work for the defendant.
(e) the work for the defendant is optional and at the choice of the individual employee of Mercury Metals;
(f) Mercury Metals continued to pay the employees, including the plaintiff, whilst work was being undertaken for the defendant; and
(g) Mercury Metals invoiced the defendant for the work done by the employees.
8 Following the accident, when the plaintiff returned to work at Mercury Metals, he lodged a workers' compensation claim.
9 The evidence shows that on the claim documentation, Mercury Metals was identified, by it, as the plaintiff's employer at the time of the Accident and therefore the claim was lodged with Mercury Metals insurer, who accepted liability for the claim and settled the plaintiff's workers' compensation claim with respect of the Accident on 8 May 2013.
10 Further documentary evidence put forth by the plaintiff shows that the plaintiff's wages, taxes and superannuation were paid by Mercury Metals. The plaintiff's group certificates nominate Mercury Metals as the plaintiff's employer at the relevant time.
11 It is therefore submitted by the plaintiff's counsel that all of the evidence points to Mercury Metals being the employer of the plaintiff at the time of the Accident.
12 The defendant has provided evidence that it was named on a number of documents as the plaintiff's employer including on taxation papers, medical documentation at the time and on invoices and receipts lodged to Mercury Metals claiming reimbursement of the plaintiff's expenses.
13 Further in the affidavit of Mr Steven John Mills dated 16 February 2015, he states the plaintiff 'worked' for the defendant throughout the document.
14 The defendant's counsel submits it was clear in the minds of the directors of the defendant, that the plaintiff was employed by the defendant at the time of the Accident. Counsel further submits that based on the documentary evidence and the evidence of the directors that the issue of who the employer of the plaintiff was at the time of the Accident is real and alive for debate.
Plaintiff's application for leave to strike out parts of the defendant's defence
15 In his amended chamber summons, the plaintiff seeks leave pursuant to O 21 r 19 of the Rules to strike out parts of the defendant's defence.
16 I assume that the plaintiff is actually seeking leave under O 20 r 19 of the Rules which specifically deals with the striking out of pleadings and that the reference to O 21 in the chamber summons is a typographical error.
17 Order 20 r 19(1) allows the court to strike out any pleading at any stage of the proceedings on certain grounds. Order 20 r 19(3) provides that any application for such an order must be made within 21 days of the service of any pleading or amended pleading.
18 The case law on the rule that the application must be made within 21 days is settled. Steytler J in Gardiner v Ray [1999] WASC 140 at [33] stated that:
Applications to strike out pleadings are, in my opinion, overused. They are always productive of delay and expense, sometimes substantially so, and often produce no sufficient countervailing benefit, particularly when they are brought at a late stage of the proceedings. It was because of considerations of this kind that the time limit fixed by O 20 r 19 was introduced. The purpose underlying that time limit is that of ensuring that, if an application of this kind is brought, it should be brought promptly so that it might at once be disposed of and the action continued without further interruption. The time limit is one to which more than lip service should be paid. Those who wish to bring an application of this kind, whether in defamation proceedings or otherwise, should consider, within the period fixed for that purpose, what benefit will be derived by bringing the application and then weigh against that the inevitable consequences of delay and expense. If the benefit is outweighed by the delay or expense, or both, the application should not be brought. If the converse is true, the application should be filed promptly.
19 These comments were repeated in the cases of Roberman v Australian Broadcasting Corporation [2002] WASC 301 [56] and Nationwide News Pty Ltd v Moodie [2003] WASCA 273 [69] where his Honour went on to say that a 'failure to act promptly will often result in the application being dismissed'.
20 In considering O 20 r 19(3) the court considered a request of an extension of five weeks to file an application inappropriate and refused in Premier Gold NL v Ocean Resources NL (Unreported, WASC, Library No 940738, 14 December 1994) a request for an extension of four weeks to file an application on the grounds of workload refused in Gardiner v Ray and an extension of 76 days, which counsel submitted would not delay the progress of the action or prejudice its proper outcome refused in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161.
21 The only time in which a delay to bring a strike out application may be considered is if the extension of time can be justified that the interest of justice requires it: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [19].
22 In this case, the defendant filed its amended defence with the court on 23 June 2014. The plaintiff brought an application to strike out on 16 February 2015, almost seven months later.
23 Whilst I accept counsel's submissions that the issue of the amended defence was at the forefront of his mind and that there was a significant amount of correspondence between the parties on the issue, including a request for further and better particulars of defence on the amendment, I do not accept that this justifies a delay of seven months in making the application.
24 Further, I do not accept counsel's submission that the case was ready to be entered for trial and that it was a matter of timing and economics of preferring to attend a pre-trial conference where it was hoped that the matter could be resolved in its entirety that stopped him from making the application.
25 Clearly, if there were issues regarding the pleadings then the matter was not ready to be entered for trial and should not have been done so until the issue regarding the defence was finalised.
26 There was nothing in the evidence or submissions which pointed to the delay in time being justified in the interests of justice.
27 I therefore find that the delay of seven months in bringing the application is inappropriate and I therefore dismiss the plaintiff's application.
The defendant's application for orders to determine a preliminary issue
28 I turn now to the defendant's application.
29 Pursuant to O 32 r 4 of the Rules the defendant seeks to have the following question determined as a preliminary issue:
At the time of the alleged accident pleaded at paragraphs 10 and 12 of the Statement of Claim files herein, was the Defendant the Plaintiff's employer for the purposes of:
(i) Division 2 of Part IV; or alternatively
(ii) sections 93K, 93L and/or 93M
of the Workers' Compensation and Injury Management Act (1981)(WA)?
30 Order 32 r 4 of the Rules provides that:
32.4 The Court may order that any question or issue arising in a cause or matter whether of law or of fact or partly of law and partly of fact, and whether raised by the pleadings or by agreement of the parties or otherwise be tried separately from any other question or issue whether before or after the trial of the proceedings, and may direct that a case and the question or issues for decision be stated.
31 The exercise of the courts discretion in determining whether an issue can, and more relevantly should, be determined as a preliminary issue are not to be considered lightly. There is a significant amount of legal authority on the issue which needs to be considered. A significant amount of case law pre-dates the commencement of case flow management and given the cases that post-date the introduction of case flow management summaries the law, I will focus on those cases.
32 McKechnie J in Carlo Nobili S.p.A Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 at [3] stated that 'the principles governing applications for the order of a separate trial of an issue are set out in a series of cases'. In summarising the governing principles, his Honour paid particular regard to the following cases: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority & Fraser (1995) 129 ALR 401, 416; Dunstan v Simmie & Co Pty Ltd [1978] VR 669; Tilling v Whiteman [1980] AC 1; Smith v Maloney (1998) 19 WAR 209, 223; Stirling Marine Services Pty Ltd v Austral Piling & Construction Pty Ltd (Unreported; WASC; Library No 970620; 21 November 1997); Tepko Pty Ltd v Water Board (2001) 206 CLR 1, 55; Allen v Gulf Oil Refining Ltd [1981] AC 1001; Chenery v Conti [1999] WASCA 258; Perre v Apand Pty Ltd (1999) 198 CLR 180.
33 McKechnie J at [4] distilled the relevant principles as follows:
· A separate trial of issues is only appropriate in clear and simple cases.
· Separate trials of issues should only be embarked upon when the utility, economy and fairness are beyond question.
· The fact that the resolution of a separate trial may determine the litigation is relevant.
· Separate trials of issues may be appropriate where it is likely to save expense and inconvenience.
· There is a focus in the Rules of the Supreme Court on the expedition of determination of matters before the Court and separate trials of issues may advance the expedition.
· A possibility that the determination of issues tried separately may lead to settlement should be taken into account even though the issues may not finally dispose of the action.
· In many cases the formulation of specific questions to be tried separately, from and in advance of other issues, will assist in the resolution of the matters in issue if the questions are capable of final answer in accordance with the judicial process.
· Separate trials are inappropriate where the result depends on complex issues of fact or when a preliminary question is one of mixed fact and law.
· The procedure should be confined generally to cases where facts are complicated and the legal issues short, otherwise it can be a treacherous shortcut.
· Separate trials may be productive of delay, extra expense and uncertainty of outcome, which they are intended to avoid. Saving some time is often illusory when the parties have the necessity of making full preparation and factual matters relevant to one issue are relevant to others which overlap.
· There is potential for further appeals.
34 Rares J in City of Swan v Lehman Bros Australia Ltd (2009) 73 ACSR 86 at [27] also summarised the principles extracted from the relevant authorities as follows:
(1) As a general rule, the starting point is that all issues of fact and law should be determined at the one time.
(2) A party seeking the determination of separate questions must satisfy the Court that it is 'just and convenient' for the order to be made. The order must be made on concrete facts, either established or agreed, for the purpose of quelling a controversy between the parties as to produce a conclusive or final judicial decision on the issue, which is of a real, not hypothetical, importance to the determination of the controversy.
(3) There are special problems where the separate issue involves a mixed question of fact and law, although it may still be able to be decided as a separate issue. However, care must be taken in precisely formulating the question and specifying the facts upon which it is to be decided.
(4) The court must have all relevant matters before it as a precondition of it being asked to exercise its discretion if the question involves the grant or refusal of declaratory relief.
(5) It may still be appropriate to determine a separate question even if it will not resolve all the issues, provided there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided or if the decision will obviate unnecessary and expensive hearings of other questions.
(6) Generally speaking an issue will not be appropriate for separate determination if it is simply one or two or more alternative ways in which an applicant or plaintiff frames its case and its determination would leave other significant issues unresolved.
(7) It is relevant to consider whether:
· the separate questions will contribute to the saving of time and cost by substantially narrowing the issues for trial or even lead to the disposal of the proceedings;
· they will contribute to the settlement of the proceedings;
· they will give rise to significant contested actual issues both at the time of the hearing of the preliminary question and at the time of the trial;
· there will be any significant overlap between the evidence adduced on the evidence of the separate question and the trial;
· the question will prolong, rather than shorten the proceedings.
36 The defendant's counsel submitted that this matter is ripe for a trial of the preliminary issue on the basis that the two affidavits filed has produced uncontroverted evidence, that there is no significant overlap in the evidence between the issue and the trial proper and that the determination of the issue will assist in the settlement of the matter.
37 I do not agree that the evidence filed to support the application is uncontroverted. A preliminary issue must only proceed on concrete facts, either established or agreed, for the purpose of quelling a controversy between the parties as to produce a conclusive or final judicial decision on the issue; City of Swan v Lehman Bros Australia Ltd. The evidence filed is contained in the affidavits of Steven John Mills dated 19 February 2015 and Ireneusz Waclaw Badocha dated 19 February 2015. In oral submissions the plaintiff's counsel did not agree with much of the evidence contained in the affidavits and refuted much of the evidence in the affidavit of Allon Jonothan Klein dated 7 April 2015 filed on behalf of the plaintiff.
38 The evidence is therefore neither concrete, established or agreed between the parties and I do not see that the evidence will produce a conclusive or final decision on the issue. Any decision would be open to appeal. In the absence of agreed facts, this is a real possibility.
39 Further, separate trials are inappropriate where the result depends on complex issues of fact or when a preliminary question is one of mixed fact and law and that the procedure should be confined generally to cases where facts are complicated and the legal issues short, otherwise it can be a treacherous shortcut; Carlo Nobili S.p.A Rubinetterie v Militaire Nominees Pty Ltd. Defence counsel agreed that the preliminary issue hearing will require a judge to make a finding of fact and then apply that finding to the law to determine the question. It is therefore a question of mixed fact and law, where the legal issue is not, in my opinion short. It will require careful examination of the facts and a clear and in depth analysis of the Act.
40 Further, I do not agree with the submission that there is no significant overlap between the evidence between the issue and the trial proper. In my opinion, there is significant overlap. The witnesses will be the same and the evidence adduced from the preliminary hearing would be relevant to the trial proper. Further, the credibility of the witnesses will be called into issue by the plaintiff and the appropriateness of a separate trial in this situation is questionable: Terravision Pty Ltd v Black Box Control Pty Ltd; Australia National Industries Ltd v Spedley Securities Ltd.
41 The defendant's submission that the hearing of the preliminary issue may assist in the settlement of the matter does have merit and I agree that a determination of the issue may assist the parties to settle the matter. This is only basis upon which I can see the defendant's application has any merit.
42 I am not however convinced that it is 'just and convenient' for a separate trial to be ordered, nor do I think there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided or that the decision will obviate unnecessary and expensive hearings of other questions. I certainly see the issue as an alternative way for the defendant to frame its defence and any determination of the issue would leave other significant issues unresolved.
43 Based on my reasons above, I do not agree that this is a matter where it is appropriate to order a separate trial of a preliminary issue and I therefore dismiss the defendant's application.
Orders
44 I will hear the parties on the final orders to be made, including the costs of the applications.
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