Anderson v Alcoa of Australia Ltd - [2001] WADC 271

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ANDERSON -v- ALCOA OF AUSTRALIA LTD [2001] WADC 271

CORAM: NISBET DCJ

HEARD: 13 JUNE, 17 OCTOBER & 22 NOVEMBER 2001

DELIVERED : 29 NOVEMBER 2001

FILE NO/S: CIV 2819 of 1999

BETWEEN: DANIAL ANDERSON
Plaintiff
AND
ALCOA OF AUSTRALIA LTD
Defendant

Catchwords:

Practice and procedure - Judgment - Order for - Recall of - Workers' Compensation and Rehabilitation Act 1981 - Section 92 - Effect on judgment - Proper form of judgment

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Order recalled for cancellation

Representation:

Counsel:

Plaintiff: Mr B S Spinks
Defendant: Mr A W Harman

Solicitors:

Plaintiff: Chapmans
Defendant: Blake Dawson Waldron

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

Nottingham v BHB Engineering Pty Ltd [1984] WAR 25

Case(s) also cited:

Allesch v Maunz (2000) 173 ALR 648
Arnett v Holloway [1960] VR 22
Bailey v Marinoff (1971) 45 ALJR 598
Caboolture Park Shopping Centre Pty Ltd (in Liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224
Commonwealth Scientific & Industrial Organisation v Perry (No 2) (1988) 53 SASR 538
DJL v Central Authority (2000) 170 ALR 659
EMS Holdings Pty Ltd v International Shipyards Pty Ltd, unreported; FCt SCt of WA; Library No 980655; 12 November 1998
Fox v Wood (1981) 148 CLR 438
High-Tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Kirk v Bilsby, unreported; FCt SCt of WA; Library No 960235; 2 May 1996
Motor Vehicle Insurance Trust v Forbes Brambles Holdings Ltd & White [1985] WAR 50
Permanent Trustee Co (Canberra) Ltd v Stocks & Holding (Canberra) Pty Ltd (1976) 15 ACTR 45
Re Aquarius Platinum (Aust) Ltd (1999) 153 FLR 284
Redding v Lee (1983) 151 CLR 117

NISBET DCJ: In my judgment following the trial of this matter ([2001] WADC 132) I pointed out that no evidence had been led by either party as to the amount of payments of compensation and statutory allowances made to the plaintiff pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 1981. See for example, par 92, par 95, par 99 and par 106.
In this case this information was more than usually important because of the changes in the plaintiff's status and earnings following the accident and his failure to prove with precision the amount of his past economic loss in a situation where I held that this was capable of being ascertained.
The parties moved for a judgment before me on 13 June 2001. Counsel for the plaintiff moved for judgment in the total sum of $178,685 together with the costs of the action and the counterclaim. At t/s 453 there was then the following exchange:
"NISBET DCJ:     Mr Harman, do you have anything to say about those motions of Mr Castiglione?
HARMAN, MR:   No, your Honour. I just wonder if I could clarify one thing. The $178,000 is over and above---
NISBET DCJ:     Whatever has been paid to date.
HARMAN, MR:   Sorry?
NISBET DCJ:     Whatever has been paid to date by way of workers' compensation entitlements. You will see in the judgment I make that plain because no evidence was led before me as to how much it was. Ordinarily of course the judgment should comprise the lot but in this instance no-one sought to prove it. That is the amount net to the plaintiff. Having regard to some of my findings, it may be advisable, Mr Harman, that you seek liberty to apply I think.
HARMAN, MR:   Yes, your Honour. Thanks for that. We do seek liberty to apply on that basis.
NISBET DCJ:     It mostly applies to you I think in the working out of the orders. When you get a chance to read the judgment, you may wish to come back. I don't know, I'm not inviting you to but you should reserve your rights I think.
HARMAN, MR:   Yes your Honour."
Following this I pronounced orders reserving liberty to both parties to apply in the working out of the orders. I made a procedural direction that in the event that either party sought to avail him or itself of the liberty to apply, this was to be by notice of motion in writing in accordance with the rules and filed at the same time with a set of submissions as to the reasons behind the motion.
What I then anticipated was that the parties would collaborate with a view to agreeing the quantum of payments made by the defendant to the plaintiff by way of weekly payments of compensation exclusive of statutory allowances so that that sum could be clearly identified as having already been paid by the defendant to the plaintiff and be noted on the order for judgment in the usual way. Here I should pause to observe that in my own experience the plaintiff was entitled always in a case such as this to move for judgment for the total sum of his loss which ordinarily would include all wages lost and all special damages comprising the cost of medical treatment, including cases in which a plaintiff may have been in receipt of payments of workers' compensation and statutory allowances. The order for judgment would then be expressed as being a total sum and words such as "of which sum, the defendant has already paid $……………" would be inserted. This is because this was the way in which the provisions of s 92 of the Workers' Compensation and Rehabilitation Act 1981 were usually given effect. That section provides:
"Where in respect of a disability an action is brought by a worker for damages independently of this Act against his employer or against some other person (referred to in this section as "the defendant") or against both of them —
(a)if the court decides the action should succeed, then after damages have been ascertained but before judgment is entered for the worker in the action, the worker shall be given a reasonable opportunity to elect whether to have judgment or to discontinue the action;
(b)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer only or against the employer and the defendant, there shall be deducted from the amount of the judgment and be paid to the employer a sum representing the amount (after apportionment in respect of any contributory negligence of the worker) actually recoverable by the worker by way of weekly or lump sum compensation, medical and other expenses paid pursuant to this Act, but where liability is apportioned between the employer and the defendant the defendant's liability to pay to the worker shall be reduced accordingly;
(c)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the defendant only or is settled by the acceptance of money paid into court by the defendant, the payments and expenses referred to in paragraph (b) shall be a first charge on the judgment or the amount of money paid into court and the defendant shall be bound to pay the amount of the compensation, and medical and other expenses to the employer and the judgment shall be pro tanto discharged by such payment, or the amount due under the charge shall be paid out of court to the employer or his authorised agent, as the case may be;"
Regrettably, what happened here is that the defendant, ignoring everything I said on 13 June 2001 extracted a judgment on 26 September 2001 without availing itself of the liberty to apply and then purported to satisfy the judgment by tendering to the plaintiff an amount for the judgment sum specified in the order as extracted of $178,685, less what it said were deductions it was entitled to make in respect of periodic payments of workers' compensation and statutory allowances.
Now whilst I understand that the defendant was anxious to appeal against my judgment and for that reason had to extract a final order it was quite wrong of it to proceed in this way in all of the circumstances. Whilst some of the defendant's criticisms of the plaintiff are accurate in that he could have established his loss with greater certainty, this in my opinion does not relieve the defendant of being the root cause of the current difficulties. As I thought I had clearly said at the time I entertained motions for judgment, the onus was on the defendant to attempt to prove the amount by which the judgment was reduced by previous payments of workers' compensation entitlements. It was not for the plaintiff to undertake this task. The order reflecting the judgment could then have made plain the money amount for which it was enforceable.
Hence, in summary, the position was that Mr Castiglione, having moved for judgment on behalf of the plaintiff obviously made an election on behalf of the plaintiff pursuant to the terms of s 92(a) of the Workers' Compensation and Rehabilitation Act 1981. It was then for the defendant to notify the court either that there was an agreed amount of periodic payments of workers' compensation or not as the case may be in order that further directions could be made to ascertain that sum if necessary. This is the procedure usually adopted in practice and set out with clarity in Nottingham v BHB Engineering Pty Ltd [1984] WAR 25, especially at 30 and 31. That this is the proper way in which to give effect to s 92 of the Workers' Compensation and Rehabilitation Act 1981 is made even plainer by an examination of the provisions of s 92(c), for without there being a proper identification in the judgment of the amount paid under the Act in respect of which credit should be given to the payer, how would a defendant be able to comply?
This problem is therefore largely of the defendant's making. It should not have assumed that it can satisfy a judgment of this Court by tendering a sum which it says satisfies the judgment less its right to deduct periodic payments of compensation.
Finally, I cannot leave this matter without observing how much of the problems that have been occasioned to the parties have been exacerbated by the conduct of the defendant as is evidenced by its letter to the plaintiff's solicitors dated 19 July 2001 exhibited to the affidavit of Mr Gandini sworn 13 August 2001. By par 106 of my judgment I made it plain that my award did not include any special damages for past medical expenses and the like and yet the defendant sought to deduct from the judgment sum almost $17,000 for statutory allowances (including past medical expenses) when it must have known that the mischief which s 92 of the Workers' Compensation and Rehabilitation Act 1981 seeks to avoid, namely the double payment of damages, simply did not arise in respect of these amounts at least.
Accordingly, in my opinion the order for judgment extracted by the defendant will have to be recalled and cancelled and the amount for which the defendant claims it is entitled to a deduction from the judgment sum agreed or ascertained. This will not amount to a re‑opening of the hearing or the adducing of fresh evidence after the close of the trial. True it is that in many trials the amounts are agreed up to the end of the trial but likewise it has been my experience that where, for example, workers' compensation payments continued between trial and judgment, the court was provided with an up-to-date figure on motions for judgment. This was done without calling evidence and almost inevitably by agreement. If there was no agreement directions were made for the ascertainment of the relevant sum before final judgment was pronounced. In this regard I must accept some of the responsibility for the events as they have happened for it would have been better for me to have declined to pronounce judgment until after I was in a position to give effect to the provisions of s 92 of the Workers' Compensation and Rehabilitation Act 1981.
Additionally I should say that this is not a case where the recall and cancellation of the judgment is a de facto action to set aside the judgment as might exist where, for example, the judgment of the court had been obtained by fraud. This is not such a case. This is a case where the judgment must be recalled for the following reasons:
1.To give effect to the provisions of s 92 of the Workers' Compensation and Rehabilitation Act 1981.
2.To properly reflect the intended judgment of the court.
3.To enable the judgment of the Court to be enforceable on its face and not liable to bring the court into disrepute on account of its uncertain effect.
In my opinion I have the power to recall the order for judgment for correction pursuant to the provisions of O 21 r 10 both to give effect to the provisions of s 92 of the Workers' Compensation and Rehabilitation Act 1981 and to my true intention as evidenced by my judgment.
Accordingly the formal orders of the court will be:
1.The order of the court for judgment dated and entered 14 June 2001 filed 26 September 2001 be and is hereby recalled.
2.The defendant, the party having extracted the order for judgment, do return the sealed copy of the judgment to my Associate for cancellation within 24 hours.
3.Within 72 hours the parties confer with a view to agreeing the amount of past periodic payments of workers' compensation paid by the defendant to the plaintiff pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 1981 in respect of which the defendant should be given credit.
4.Failing agreement between the parties the defendant within seven days file and serve an affidavit setting out with particularity by reference to the judgment the payments made by it to the plaintiff pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 1981 in respect of which it claims credit should be given in the judgment.
5.The plaintiff do file and serve any affidavit in reply within seven days of service of any affidavit served upon him by the defendant.