Alexander v Western Australian Government Railways - [2001] WADC 81

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ALEXANDER -v- WESTERN AUSTRALIAN GOVERNMENT RAILWAYS [2001] WADC 81

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 27 FEBRUARY 2001

DELIVERED : 30 MARCH 2001

FILE NO/S: CIV 1627 of 2000

BETWEEN: GRAEME WILLIAM ALEXANDER
Plaintiff
AND
WESTERN AUSTRALIAN GOVERNMENT RAILWAYS
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Defendant's application for summary judgment - Previous application under s 47(a)(3) of the Limitation Act refused - Action commenced without leave - Election - Estoppel

Legislation:

Limitation Act 1935

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr T P Heard
Second Defendant : Mr P P McCann

Solicitors:

Plaintiff: Bradford & Co
Second Defendant : Phillips Fox

Case(s) referred to in judgment(s):

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Sargent v ASL Developments Ltd (1974) 131 CLR 634

Case(s) also cited:

Bayley v Wesfarmers Transport Ltd [2000] WASCA 399
Broun v Western Australian Government Railways Commission, unreported; DCt of WA; Library No.D980167; 16 June 1998
Lokan v The Metropolitan Cemeteries Board, unreported; DCt of WA; Library No D970297; 23 September 1997
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Sargent v ASL Developments Ltd (1974) 131 CLR 634
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

DEPUTY REGISTRAR HARMAN: The plaintiff's action against the second defendant is for damages for personal injury.
By the application the defendant seeks to strike out the action, alternatively to have the action permanently stayed alternatively summary judgment. At the hearing the first prospect was abandoned. The ground of the balance of the application is provided by s47A of the Limitation Act 1935.
In support of the application the defendant’s solicitor gives the following evidence.
"4.The Second Defendant is a body corporate with perpetual succession and a common seal created by an Act of Parliament of the State of Western Australia, namely the Government Railways Act 1904 as amended ('the Railways Act').
5.Pursuant to s13 of the Railways Act, and subject to the provisions of the Railways Act, The Rail Safety Act 1998 and of s18E of the Transport Coordination Act 1996, the Second Defendant has the management, maintenance and control of every government railway.
6.According to the Plaintiff's Indorsement of Claim, his claim against the Second Defendant is for damages ' for personal injuries suffered by him in an accident which occurred on 29 June 1994 near Jarrahdale in the State of Western Australia as a result of the negligence, breach of statutory duty, breach of contract and breach of duty on the part of', inter alia, the Second Defendant, its servants or agents.
7.I am personally aware from my involvement in this matter that the Plaintiff has previously applied to this Court pursuant to s47A(3) of the Limitation Act ('the Act') for leave to bring an action against the Second Defendant. The cause of action in respect of which the Plaintiff sought leave was a claim for damages for personal injuries allegedly suffered by him in an accident which occurred on 29 June 1994 near Jarrahdale in the State of Western Australia whilst working on a train derailment on a government railway. The application was heard by Commissioner Reynolds of this Court on 4 May 2000 and judgment was delivered on 12 May 2000. The application was refused by Commissioner Reynolds. Annexed hereto are the following documents relating to that application:
7.1Annexure 'MLS1' being a copy of the Plaintiff's Originating Summons in Action No. 40 of 2000.
7.2Annexure 'MLS2' being a copy of the Affidavit of the Plaintiff in support of the Originating Summons.
7.3Annexure 'MLS3' being a copy of Reasons for Decision of Commissioner Reynolds delivered on 12 May 2000.
8.To the best of my information and believe, the Plaintiff has only ever notified the Second Defendant of a claim for damages in respect of one incident in which he suffered injuries on 29 June 1994 near Jarrahdale in the State of Western Australia, namely the proposed claim the subject of the application in Action No.40 of 2000. The other Defendants to this action, namely Brambles Australia Limited (First Defendant) and Liebher-Australia Pty Ltd (Third Defendant) were also alleged by the Plaintiff to have been involved in the incident the subject of Action No.40 of 2000.
9.By reason of the matters referred to in paragraphs 4 to 8 hereof (including the facts and circumstances deposed to by the Plaintiff in the affidavit being Annexure 'MLS2' and referred to in the Reasons for Decision being Annexure 'MLS3', I verily believe that:
9.1the cause of action alleged against the Second Defendant in the Plaintiff's Indorsement of Claim in this matter is the same cause of action as was alleged in the Plaintiff's application in Action No.40 of 2000.
9.2The Plaintiff's action herein is brought against the Second Defendant for an act done in pursuance or execution or intended execution of the Second Defendant's powers and duties pursuant to the Railways Act, or in respect of an alleged neglect or default in the execution of that Act, or in respect of an act done in pursuance or execution of the Second Defendant's public duty or authority and as such the Plaintiff's alleged cause of action is subject to the provisions of s47A of the Act.
10.The Plaintiff did not commence this action against the Second Defendant within a period of 1 year after 29 June 1994 as required by Section 47A(1)(b) of the Act. Further, the Plaintiff has not obtained leave to commence these proceedings pursuant to Section 47A(3) of the Act."
The application was made at a time prior to any pleading being filed. The onus is upon the defendant.
In considering the application for judgment it is appropriate to evaluate the sufficiency of the evidence. The plaintiff has provided no evidence. That does not mean that the defendant succeeds by default. The defendant’s evidence is not sufficiently conclusive to allow for a determination that the plaintiff has only one cause of action against the defendant arising from events on 29 June 1994.
At the hearing the defendant also relied upon what it contended was implicit in the following passage from the plaintiff’s written submissions:
“The originating summons for leave was issued purely as a safety net or precaution for the plaintiff but it is contended that at no stage did the fact the plaintiff require leave pursuant to the Limitation Act.”
The plaintiff took no issue with that proposition. In my opinion it is appropriate to consider that the plaintiff accepts that the defendant’s evidence is relevant to this action. The cause of action considered in the prior action is the same as that in respect of which this action is brought. It follows that this action has been commenced without leave.
The defendant does not simply contend that the plaintiff having sought leave to commence an action in relation to the cause and having failed, it is entitled to judgment in this action. If that was the case it may still be open to the plaintiff to distinguish the issues determined in the prior action from those which may need to be determined upon the pleadings in this action. Rather, the defendant seeks to enforce the result of the prior action by technical processes in this action. Those processes are the doctrine of election and the estoppel found by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Waiver by election may arise in any circumstance. It was expressed in Sargent v ASL Developments Ltd (1974) 131 CLR 634 as being founded upon recognition of the existence of two sets of rights. The conduct in question must be found to be unequivocal in the sense that it is consistent with the exercise of one and inconsistent with the exercise of the other. Further that inconsistency be such that the enjoyment of one extinguishes the other. On that short analysis it is evident that it is at best conceivable that the court would find that the principle applied to the plaintiff in the evidentiary context portrayed by the defendant.
In Anshun the estoppel operated as a result of the unreasonableness inherent in a party refraining from raising a cause of action for consideration in a prior action. Obviously whether a court gave relief as a consequence would depend upon an analysis of the issues in the prior action and the subject action in order that a determination be made that it was properly to be expected that all related actions between parties be resolved in the one action. There are three significant issues raised by the facts in Anshun. The first that the indemnity relied upon by the respondent at common law would have been a defence in the prior action. The second is that under the Wrongs Act 1958 (Vict.) the court in the prior action could have made findings as to contribution and indemnity had the indemnity issue been raised. Thirdly there was the prospect that any judgment in the case would be in conflict with the prior judgment. In the circumstances the court considered that the issue raised in the second action ought to have been raised in the first.
In this case there are no pleadings. It is my understanding of the submissions of the parties that the defendant would plead the limitation and the plaintiff, that the provision does not apply. I understand that the plaintiff would intend to put a case along the lines that the activity in which the plaintiff and defendant were relevantly engaged ought not to attract statutory protection. The defendant contends that the faculty existed for the plaintiff to seek a declaration in the prior action as to the applicability of the statutory provision under O 58 r 11. It is as follows:
"Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute, or of a regulation, rule, by-law of instrument made or purporting to be made under a statute, or of the validity of any such regulation, rule, by-law, or instrument, may apply by originating summons for the determination of such question of construction or validity and for a declaration as to the right claimed."
On a plain reading of that rule it is not apparent that it would have any application in a case such as this where a determination is more a matter of whether the defendant is entitled to statutory protection. In any event it is my understanding that any such issue raised on the pleadings would not simply be a matter of construction it would involve the consideration of evidence. I would imagine that if the plaintiff had taken the course that the defendant now proposes the defendant might properly have objected to a determination being made other than after trial on the pleadings. Even if the defendant did not so object it would be an inappropriately onerous task for the plaintiff to comprehensively address the issue of the applicability of the statute on affidavit evidence.
Regardless of those considerations, the defendant would have me consider that the plaintiff has held back an issue that could have been determined in the prior action. In Anshun the issue held back was central to the issue of the liability of the applicant which had been the subject of determination in the prior action. In that instance throughout the course of the prior action the applicant must have been waiting for the respondent to raise what would or at least may have been the conclusive issue. It was never raised. In this case it is not apparent that there is anything that could have been conclusive apart from the matter of interpretation and it is my understanding, that interpretation would favour what I understand to be the plaintiff’s case which is that the provision does not apply in every instance. I do not see that any issue or evidence in this case which has been inappropriately held back from determination in the earlier litigation. Indeed it is hard to see any holding back at all. The plaintiff now contends he has a cause of action. That was explicit in the prior action. Unlike Anshun, in this instance the respondent could only have had determined ancillary issues relating to that cause in the prior action. Those issues bear upon statutory considerations and have no bearing upon the cause. Put at its highest, on the basis of the determination in the prior action, if the plaintiff requires a grant of leave to commence this action, it ought not to have been commenced.
In the prior action the court determined that the plaintiff would not have leave to commence an action with respect to the cause. The first basis for that determination was the finding that the plaintiff had no reasonable cause both for his failure to give notice of the accident and to commence an action. The second was that the defendant would be materially prejudiced if an action were to be commenced. There were two features of that prejudice. One arises from delay and the other in the coincidence of the outstanding issue of the status of the cause of action under the Workers’ Compensation and Rehabilitation Act and the then imminent expiration of the limitation period. As to each consideration the fact of the prejudice to the defendant is not justiciable in this action. Despite the absence of pleadings in this action I am satisfied that there would be no prospect of conflict between findings of material facts in this action and the findings made on the evidence in the last. It is my opinion that at best it may be determined that the defendant may not have been as prejudiced as the court in the last action considered would be the case.
In any application where a defendant claims that it is entitled to an exercise of discretion which would preclude disposal of an action on its merits in the usual manner it is appropriate to consider that the onus is significant and the discretion exercised only in a clear case. In my opinion the onus has not been discharged. I am not satisfied that it is appropriate to exercise discretion in the manner contended for by the applicant.