Andonovski v Barbeques Galore Pty Limited
[2013] NSWSC 800
•29 July 2013
Supreme Court
New South Wales
Medium Neutral Citation: Andonovski v Barbeques Galore Pty Limited [2013] NSWSC 800 Hearing dates: 20 June 2013 Decision date: 29 July 2013 Before: Harrison J Decision: Parties to bring in short minutes of order to reflect these reasons and conclusions.
Catchwords: PROCEDURE - application for leave pursuant to s 151D Workers Compensation Act - where previous applications for leave heard and determined - whether application subject to res judicata or issue estoppel - whether actual prejudice to the defendant - consideration of effect on potential cross -claim - Limitation Act s 74 - leave granted Legislation Cited: Limitation Act 1969
Uniform Civil Procedure Rules
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998Cases Cited: Itex Graphic Pty Ltd v Elliot [2002] NSWCA 104
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139Category: Procedural and other rulings Parties: Vlado Andonovski (Plaintiff)
Barbeques Galore Pty Limited (Defendant)Representation: Counsel:
E Welsh (Plaintiff)
N Polin (Defendant)
Solicitors:
Brydens (Plaintiff)
DLA Piper (Defendant)
File Number(s): 2012/348213 Publication restriction: Nil
Judgment
HIS HONOUR: Section 151D of the Workers Compensation Act 1987 provides relevantly as follows:
"151D Time limit for commencement of court proceedings against employer for damages
(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.
(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.
(4)..."
On 8 March 2007, Mr Andonovski commenced proceedings in the District Court against Park-Tec Engineering claiming damages in respect of injuries that he allegedly sustained on 11 March 2004 whilst working at its premises. He was then employed by Barbeques Galore but did not sue them at that time. However, on 8 June 2007 Mr Andonovski filed a further amended statement of claim in which he named Barbeques Galore as a second defendant. The pleading was filed more than three years after the date on which he sustained the injuries in respect of which he sued but no prior application for leave to do so had been sought or obtained from the District Court in accordance with s 151D(2) of the Act.
On 24 July 2012 Barbeques Galore filed a notice of motion in the District Court seeking to dismiss Mr Andonovski's proceedings for what was described as a "breach" of s 151D(2) of the Act. Mr Andonovski thereafter filed his own notice of motion in the District Court on the following day in which he sought an order that "time be extended for [him] to file a statement of claim as against [Barbeques Galore]".
These applications came before his Honour Letherbarrow DCJ on 31 August 2012. His Honour dismissed Mr Andonovski's notice of motion with costs and accordingly made no orders on Barbeques Galore's application. Notwithstanding this outcome, Mr Andonovski filed a further notice of motion on 21 September 2012 and an amended notice of motion on 16 October 2012 in which he again sought an order that "time be extended for [him] to file a statement of claim as against [Barbeques Galore] to 8 June 2012".
In the meantime, on 27 September 2012, Mr Andonovski had filed a notice of intention to appeal against Judge Letherbarrow's determination. A notice of appeal was filed in due course on 29 November 2012. However, in circumstances that may at one time have appeared likely to be significant, the appeal to the Court of Appeal was dismissed by consent on 11 March 2013.
For reasons that are not entirely clear, Mr Andonovski apparently filed yet another statement of claim in the District Court on 8 November 2012 in which he purported to commence new proceedings against Barbeques Galore alone but curiously seeking the same relief as in the original amended proceedings. On the same day Mr Andonovski filed a notice of motion in the new proceedings seeking the following orders:
1. An order pursuant to UCPR 28.4 for the separate determination of the question of whether [Barbeques Galore] has the right to cross-claim against Park-Tec Engineering by operation of s 74 of the Limitation Act 1969.
2. That [Mr Andonovski] have leave to proceed against [Barbeques Galore] pursuant to s 1514D [sic] of the Workers Compensation Act 1987.
3. An order that each parties [sic] to bear its own costs of the motion.
4. An order pursuant to UCPR 36.15 setting aside the costs order made by Letherbarrow DCJ on 31 August 2012 and substituting an order in relation to that application that each party bear its own costs.
Then on 16 November 2012 Mr Andonovski filed a notice of motion in the original 2007 District Court proceedings seeking an order pursuant to UCPR 28.4 for the separate determination of the question of whether Barbeques Galore had an available right to cross-claim against Park-Tec Engineering by the operation of s 74 of the Limitation Act.
The notices of motion referred to in [6] and [7] above came before her Honour Truss DCJ on 29 November 2012. Her Honour dismissed Mr Andonovski's notice of motion filed in the 2007 proceedings with costs. Her Honour declined to make order 1 sought in the new proceedings and stood orders 2 and 3 over to be heard on 8 April 2013. I am unaware of what, if anything, happened on that occasion.
Barbeques Galore filed a defence to the 2012 proceedings on 13 December 2012. It pleaded s 151D of the Act as an "answer to the whole of the statement of claim". It also pleaded reliance upon s 318(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998.
On 27 February 2013 Mr Andonovski filed a summons in this Court seeking to remove the 2007 and 2012 proceedings in the District Court to this Court as well as factually unrelated proceedings numbered 2008/316044. On 12 March 2013 this Court made orders for the removal of all of those proceedings to this Court.
The matter therefore comes before me in these extraordinary, if not almost unbelievable, circumstances pursuant to a notice of motion filed by Barbeques Galore on 19 April 2013 seeking an order that the proceedings in this Court be dismissed "for breach of s 151D of the Workers Compensation Act". It is contended on behalf of Barbeques Galore and tacitly accepted by Mr Andonovski that the relief sought by Barbeques Galore ought to be granted. That is for the reason that Barbeques Galore does not have the benefit of s 74 of the Limitation Act in the proceedings in which it is the only defendant, and where the argument based on the resulting irremediable prejudice cannot be overcome.
It was clearly in anticipation of that possible result that Mr Andonovski sought at the commencement of the proceedings before me to file in Court yet another notice of motion in the (now removed) 2007 District Court proceedings in which Park-Tec Engineering is the only defendant, seeking the following orders:
1. That Mr Andonovski be given leave to file a second further amended statement of claim joining Barbeques Galore as a second defendant.
2. The costs of the motion be costs in the cause.
3. That Mr Andonovski be granted leave pursuant to s 151D of the Workers Compensation Act to continue these proceedings against Barbeques Galore.
In the events that have occurred it seems apparent that the s 74 issue does not arise on Mr Andonovski's application for obvious reasons. The central significant issue would appear therefore to be whether or not Mr Andonovski's application is defeated by a plea of res judicata or issue estoppel, having regard to the fact that both Letherbarrow DCJ and Truss DCJ have already decided the question, and to the additional fact that Mr Andonovski's appeal to the Court of Appeal against his Honour's decision refusing to grant him an extension of time to bring proceedings under s 151D was on 11 March 2013 dismissed by consent.
Consideration
Barbeques Galore takes the position that Mr Andonovski's notice of motion is simply the same as that determined by Letherbarrow DCJ on 31 August 2012 and again by Truss DCJ on 29 November 2012. When the matter was before Letherbarrow DCJ, Mr Andonovski conceded that the Limitation Act provisions precluded Barbeques Galore's right to file a cross-claim against Park-Tec Engineering. Mr Andonovski now says that such a concession was incorrect and should not have been made. Barbeques Galore contends that even if that is correct, the issue has already been decided and an appeal against its correctness has been dismissed. It says that there has been a judicial determination so that principles of res judicata are a complete answer to the claim: see Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. Having been heard and determined by Letherbarrow DCJ and later also dismissed by Truss DCJ, I should not entertain a further attempt to relitigate the issues. That is said particularly to be so following the making of consent orders by the Court of Appeal.
Mr Andonovski has submitted that when the matter came before Letherbarrow DCJ, the only relevant issue was whether Barbeques Galore had lost the opportunity to issue a cross-claim against Park-Tec Engineering. If it had lost that opportunity, it would have amounted to actual prejudice. He submitted that if it were otherwise, and the right to issue a cross-claim had not been lost, no actual prejudice could have been demonstrated and so it would have been appropriate to grant the leave sought by him for the purposes of s 151D. Mr Andonovski contends that the concession that actual prejudice had been demonstrated flowed from an erroneous and unfortunate acceptance by his counsel at the time that s 26(1)(b) of the Limitation Act alone carried the day. However, he now contends that his counsel at the time failed to have regard to the terms of s 74 of that Act, which meant that Barbeques Galore's right to cross-claim remained on foot unaffected by the operation of s 26 and therefore there was no demonstrable prejudice at all.
Sections 26 and 74 of the Limitation Act provide relevantly as follows:
"26 Contribution between tort-feasors
(1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of:
(a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and
(b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action.
(2) ...
74 Set off etc
(1) Where, in an action (in this section called "the principal action"), a claim is made by way of set off, counterclaim or cross action, the claim, for the purposes of this Act:
(a) is a separate action, and
(b) is, as against a person against whom the claim is made, brought on the only or earlier of such of the following dates as are applicable:
(i) the date on which the person becomes a party to the principal action, and
(ii) the date on which the person becomes a party to the claim...."
In the proceedings before Letherbarrow DCJ, neither party referred to the interaction between these two sections. The original statement of claim in these proceedings was filed on 9 March 2007. Park-Tec Engineering and Barbeques Galore were the first and second defendants respectively. By the operation of s 74, Barbeques Galore's right to seek contribution from Park-Tec Engineering was fixed at that time.
Mr Andonovski's present application again seeks leave pursuant to s 151D. There is no fundamental bar to the bringing of such an application in appropriate circumstances: see Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139. The discretion conferred by the section is not to be narrowly construed. The general question is what is fair and just in the circumstances or what the justice of the case requires: see Itex Graphic Pty Ltd v Elliot [2002] NSWCA 104. No issues going to general discretion were raised before Letherbarrow DCJ, the issue being instead confined to the actual prejudice that Barbeques Galore would suffer if it were sued but its right to cross-claim were barred by statute.
Mr Andonovski contends that no such impediment exists. The only obstacle confronting him is whether a further application for leave is viable having regard to the competing considerations of res judicata, issue estoppel or simply abuse of process.
Mr Andonovski contends that if the submission made by both counsel to Letherbarrow DCJ, to the effect that the cross-claim that Barbeques Galore wanted to file was statute barred, was plainly wrong, that provides a substantial reason supporting the exercise of a discretion to extend the time under s 151D as sought. The burden of that submission lies in the notion that Barbeques Galore cannot or should not be entitled to take advantage of a decision in its favour arguably based to some extent at least upon a false premise that it embraced or failed to rectify.
It seems to me that there is considerable merit in that contention. I have had particular regard to the discussion in Manning at [71] and [122]-[124]. The case has been plagued by a series of unfortunate events and consequent delays. There is no justification for refusing the present application and casting the potential burden of Mr Andonovski's problems on some other prospective defendant when a reasonable explanation for these matters exists and there is no question of principle or prejudice suggesting a different course. I consider that it is in the interests of justice to grant Mr Andonovski the relief that he seeks.
Having regard to the multiplicity of proceedings and competing notices of motion, however, I will invite the parties to bring in short minutes of order to reflect these reasons and my conclusions. The costs of the proceedings before me should be the costs in the cause.
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Decision last updated: 30 July 2013
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