Armet v Stephen Browne
[2020] WADC 63
•15 MAY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ARMET -v- STEPHEN BROWNE [2020] WADC 63
CORAM: DAVIS DCJ
HEARD: 23 MARCH 2020
DELIVERED : 15 MAY 2020
FILE NO/S: CIV 1375 of 2019
BETWEEN: STEPHANE ARMET
Plaintiff
AND
STEPHEN BROWNE
Defendant
Catchwords:
Practice and procedure - Stay application - Stay sought until outcome of related appeals - Turns on own facts
Legislation:
Nil
Result:
Application for stay dismissed
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr G P Bourhill |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | Gilchrist Connell |
Case(s) referred to in decision(s):
Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
Armet v CFC Consolidated Pty Ltd [2020] HCASL 94
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345
Haoma Mining NL v Gibbs [2017] WASCA 173
Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201
Mustac v Medical Board of Western Australia [2007] WASCA 128
Palmer v CITIC Ltd [2017] WASC 253
Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108
Rayney v The State of Western Australia [2019] WASCA 23
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd [1992] FCA 72; (1992) 34 FCR 287
Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
DAVIS DCJ:
In this action, the plaintiff, Mr Armet, has sued the defendant, his former solicitors, who acted for Mr Armet on his claim for workers' compensation and common law damages against his employer. Mr Armet alleges that the defendant was negligent when applying for an extension of the termination day, the day by which Mr Armet had to make an election to pursue common law damages and have that election registered, pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
The defendant has brought an application for a stay of this action. The basis for the defendant's application is that Mr Armet is involved in a number of different legal proceedings involving his employer, dealing with whether he can pursue his claim for common law damages, and also in relation to his entitlement to workers' compensation for injuries he says he sustained in the course of his employment.
The defendant has submitted that until Mr Armet has finalised all proceedings involving his employer, and determined what, if any, workers' compensation entitlements he has against his employer, it is impossible for this court to determine whether any negligence of the defendant has, or has not, caused any loss to Mr Armet.
For the reasons set out in this judgment, I refuse the defendant's application for a stay of the proceedings.
Background facts
The following is a very brief summary of the facts from the material before me. This includes the pleadings in this action, the affidavits sworn in support of the application annexing, among other documents, a Court of Appeal decision of Armet v CFC Consolidated Pty Ltd (Armet v CFC),[1] and Mr Armet's affidavits sworn in opposition.
[1] Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 (Armet v CFC).
In an accident in the course of his employment on 18 March 2015, Mr Armet sustained an injury to his lower back (the first injury). He then claimed an aggravation of his back injury and a further injury, tinnitus, occurring between 2 September 2015 and 4 September 2015 (the second injury).
On 30 July 2015 Mr Armet claimed workers' compensation for the first injury.
On 14 October 2015 the employer's insurer accepted liability for payment of statutory workers' compensation benefits for Mr Armet's lower back injury.
Mr Armet made a further claim for compensation for the second injury in two workers' compensation claim forms dated 10 November 2015 and 24 November 2015 respectively.
On 21 January 2015 the employer's insurer disputed liability for the tinnitus claim.
Mr Armet's entitlement to pursue a claim for common law damages against his employer for his injuries is governed by the provisions of pt IV, div 2, of the Act.
Pursuant to s 93K of the Act, before any action for common law damages could be brought against his employer, Mr Armet had to make an election to retain the right to seek damages, and the director had to register that election in accordance with the regulations. However, pursuant to s 93L of the Act, Mr Armet could only elect to retain the right to seek damages if his degree of permanent whole of person impairment was at least 15%, and he made his election before the 'termination day'.
Pursuant to s 93M(1), the termination day was the last day of the period of one year after the day on which Mr Armet made his claim for compensation, unless the director extended the termination day pursuant to s 93M(4).
The director could extend the termination day in the circumstances, relevantly to Mr Armet, outlined in s 93M(4)(a) - that an approved medical specialist had certified that an extension was required because Mr Armet's condition had not, at the time of the certification, stabilised sufficiently for the purposes of making an election, and had recommended that a further specified time was necessary for that purpose.
The maximum period of extension which the director could give, pursuant to s 93M(6), was one year.[2]
[2] Armet v CFC [119] - [120].
On 3 February 2016 Mr Armet instructed the defendant to act on his behalf regarding his workers' compensation and common law entitlements. Mr Armet pleads in the statement of claim in this action that he instructed the defendant in relation to all injuries. In its defence, the defendant pleads that it was only instructed in relation to the first injury.
On 14 January 2016 the employer's insurer informed Mr Armet, through the defendant, that the termination day for the first injury was 30 July 2016.
The defendant then arranged for Mr Armet to be assessed by a doctor who is an approved medical specialist.
On 12 February 2016 that approved medical specialist issued a certificate stating that Mr Armet's condition had not stabilised and recommending that an extension of the termination day should be given to 12 February 2017.
On 29 February 2016 the defendant made an application on behalf of Mr Armet to extend the termination day.
On 9 March 2016 the director granted Mr Armet an extension of the termination day to 12 February 2017, which was the date recommended by the approved medical specialist.
On 11 May 2016 Mr Armet terminated the defendant's legal services.
Mr Armet did not make an election to retain the right to seek common law damages before the extended termination day of 12 February 2017.
On 21 February 2017, without making an election and having that election registered as required pursuant to s 93K(4) of the Act, Mr Armet commenced common law proceedings against his employer. In that action he claimed damages for six personal injuries which occurred between 24 November 2014 and 15 September 2015, allegedly caused by the employer's negligence. In his statement of claim filed 26 February 2018, Mr Armet alleged that the first injury, involving backache and sciatica, occurred on 18 March 2015 and that was the root or cause of all other injuries.[3] Later, in an amended statement of claim filed 3 September 2018, Mr Armet included a claim for losses in respect of tinnitus, along with a lumbar spine injury, neck injury, foot injury, hair loss and psychiatric injury. The date or dates of any accident or accidents on which these alleged injuries were sustained were not identified.[4]
[3] Armet v CFC [14].
[4] Armet v CFC [17].
In the meantime, Mr Armet had commenced two applications for workers' compensation, one in respect to his claim for tinnitus (application no A34042) and another in respect to foot pain, plantar fasciitis, neck pain and hair loss (application no A36114). Both of these applications proceeded to arbitration. On 13 December 2017 an arbitrator handed down separate decisions in respect of the two applications, in which he:[5]
(a)dismissed Mr Armet's application A34042 for tinnitus, finding that it was not an injury arising out of the course of his employment; and
(b)allowed the application A36114 in respect to referred foot pain, but otherwise dismissed the application in respect to Mr Armet's claims for plantar fasciitis, neck pain and hair loss.
[5] Respondent's submissions dated 30 May 2019 in Consolidated Appeal No 4 and 5 of 2018; Annexure JAD3 to the affidavit of James Alexander Duffy sworn 31 January 2020.
Mr Armet brought appeals from those decisions to this court, Appeal No 4 of 2018 and Appeal No 5 of 2018. The two appeals have been consolidated and the consolidated appeal is yet to be determined.
On 27 March 2018, in the action which Mr Armet had commenced against his employer, the employer applied for summary judgment against Mr Armet, alternatively an order that the action be struck out or stayed, on the basis that Mr Armet had failed to comply with the provisions of s 93K(4) of the Act.
That application was heard by Deputy Registrar Hewitt on 30 May 2018 and his decision delivered on 5 July 2018. Deputy Registrar Hewitt found that there was no doubt that an election had not been made, nor registered. As a consequence Mr Armet was precluded from obtaining damages he sought against the employer in that action. The deputy registrar ordered that the action be struck out.[6]
[6] Armet v CFC [24] - [26].
Mr Armet appealed the deputy registrar's orders, and that appeal was heard by Stone DCJ on 31 October 2018. Stone DCJ concluded that the decision of the deputy registrar was correct and that the action brought by Mr Armet for common law damages against his employer could not succeed, because he had not complied with s 93K(4) of the Act.
Mr Armet then brought an appeal from Stone DCJ's decision in the Court of Appeal (WA).
On 12 April 2019 he commenced this action against the defendant, filing a writ and general indorsement of claim.
On 30 October 2019, the Court of Appeal (Murphy, Mitchell and Vaughan JJA in a joint judgment) dismissed Mr Armet's appeal and held, inter alia, that Stone DCJ's decision was correct. The Court of Appeal's reasons are contained in the decision Armet v CFC.
On 26 November 2019 Mr Armet filed an application in the High Court of Australia for special leave to appeal the decision of the Court of Appeal in Armet v CFC. At the date of the hearing before me, that special leave application had not been heard or determined.
Also in November 2019, Mr Armet's employer filed in this court an appeal from a workers' compensation decision involving Mr Armet, which concerned the relationship between Mr Armet's psychiatric injury and whether it was materially caused or contributed to by pain arising from his back injury.[7] That appeal is Appeal No 88 of 2019, and is yet to be determined.
[7] Affidavit of James Alexander Duffy sworn 10 March 2020 and the annexed appeal notice in Appeal No 88 of 2019, dated and filed 21 November 2019.
In the present action against the defendant, Mr Armet has alleged that the extension of the termination day to 12 February 2017 should have been an extension to 30 July 2017. He has pleaded that he has 'irrevocably and completely lost' his right to make a claim for common law damages against his employer.[8] That loss was caused by the negligence of the defendant in prematurely lodging the application for extension of the termination day on 3 March 2016, instead of closer to the termination day of 30 July 2016.[9] Mr Armet claims that had the defendant lodged the application in the week ending 29 July 2016, the termination day would have been extended for 12 months ie: to the last week of July 2017 and not 12 February 2017, thereby giving him a further six months in which to obtain medical reports in order to establish his bodily impairment of more than 15%.[10]
[8] Statement of claim filed 10 May 2019, par 15.
[9] Statement of claim, par 16.
[10] Statement of claim par 17.
Mr Armet has also pleaded that he was negligently advised, because the defendant failed to explain to him the steps to be taken to prepare for and effectively elect to preserve his right to proceed with a common law action against his employer, including obtaining further medical reports.[11]
[11] Statement of claim pars 11 and 19.
Mr Armet has claimed he has suffered loss as a result of the defendant's negligence, and has claimed expenses (including medical expenses) arising from the following injuries:[12]
[12] Plaintiff's schedule of damages filed 5 August 2019.
1.tinnitus;
2.lumbar spine and neck;
3.foot treatments (from which it is not clear, but I assume includes treatment costs for plantar fasciitis);
4.hair loss;
5.psychiatric and psychological expenses;
6.screening imaging expenses;
7.mileage relating to consultations with his general practitioner;
8.legal expenses;
9.other travel expenses (relating to his workers' compensation claims, WorkCover and court hearings);
10.medication expenses;
11.future treatment and medication; and
12.retraining costs.
After the hearing of this application, and not long before finalising these reasons, I learned that Mr Armet's High Court special leave application was dismissed on 16 April 2020. In brief reasons, the High Court stated that the decision of the Court of Appeal was clearly correct and that Mr Armet's appeal had no prospect of success.[13]
[13] Armet v CFC Consolidated Pty Ltd [2020] HCASL 94.
Accordingly, and after reference to the parties, I will proceed to determine the defendant's application on the basis that the stay is sought pending the outcome of the consolidated Appeal Nos 4 and 5 of 2018 and Appeal No 88 of 2019, which for ease of reference I will refer to as 'the workers' compensation appeals'.
The parties' submissions
The defendant submitted that the outcome of the workers' compensation appeals relating to Mr Armet's workers' compensation entitlements will affect the current action which Mr Armet has brought against the defendant, because the outcome of the workers' compensation appeals will have an impact on his claims against the defendant in this action for his tinnitus, neck pain, foot injury, hair loss and psychiatric injury.
The defendant has submitted that until the outcome of these matters, it will not be known what Mr Armet's loss and damage will be.
The defendant has also submitted that if the current action is not stayed, there is a real risk of a contradictory finding or findings being made by this court on the same subject matter, namely the existence and cause of the alleged tinnitus, plantar fasciitis, neck pain, hair loss and psychiatric injury.[14] The judge who determines this action would have to make his or her own decision about what might be the consequence of the defendant's negligence, with other judges in the workers' compensation appeals dealing with the same issues.
[14] Defendant's written submissions dated 12 March 2020, pars 36 - 40.
Counsel for the defendant submitted that this application is not an effort to deny Mr Armet his right to pursue this action against the defendant, it is simply to postpone it until such time as all of the other outstanding matters have been dealt with so that when it comes to be heard, it will be clear what the consequences of any alleged negligence have been.
Mr Armet has submitted, both orally and in written submissions attached to his affidavits,[15] that the workers' compensation appeals have no relevance or application to this case.
[15] In particular the affidavit of Mr Armet sworn 8 March 2020 and filed 11 March 2020, pages 8 and 9.
Mr Armet has submitted further that the application for stay is obstructing his claim for damages against the defendant, and has no legitimate purpose other than to delay the proceedings for the benefit of the defendant and to his prejudice. (Although Mr Armet has expressed this in a different way or ways, this is my summary of his submissions).
There are two aspects of the claim against the defendant in this action which Mr Armet must prove.
First, he must prove that the defendant was negligent. Although Mr Armet's submissions in his affidavits have canvassed the defendant's negligence at some length, I make no comment about this aspect of his claim; that is not a matter I have to determine for the purpose of this application. However, I do not consider that the outcome of the workers' compensation appeals will be determinative of this issue.
Secondly, Mr Armet must prove the loss and damage he has suffered as a result of the defendant's negligence. I accept the defendant's submission that the outcome of the workers' compensation appeals will have some impact on the assessment of Mr Armet's claim against the defendant for loss and damage. The outcome of the appeals in this court will determine whether Mr Armet is entitled to claim, as against the defendant in this action, his expenses and costs in relation to his claims for tinnitus, his neck pain, his foot injury, his hair loss and his psychiatric injury.
The issue is whether this justifies the making of an order for a stay of this action.
Principles relevant to the defendant's stay application
It is a fundamental principle that a plaintiff is entitled to have his or her action tried in the ordinary course of the procedure and business of the court, subject to the inherent jurisdiction of a court to stay proceedings if the interests of justice so demand.[16]
[16] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 520.
The defendant is only seeking a temporary stay until the workers' compensation appeals are determined, one way or another. When this appeal was heard, the defendant's submissions were unsupported by any authority. I discussed with the parties whether the basis for the court's power to grant a stay was to prevent its processes from being abused.[17] It has been left to me to conduct my own research.
[17] Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536; Walton v Gardiner ; Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 [4].
My research has revealed that the applicant for a temporary stay of proceedings is not required to establish an abuse of process in the relevant sense. Rather, the court has the power to grant an interim order to stay the proceedings, with or without conditions. This includes the power to order a temporary stay of the proceedings or adjourn the proceedings pending the completion of related proceedings.[18]
[18] Rayney v The State of Western Australia [2019] WASCA 23 [47]; Haoma Mining NL v Gibbs [2017] WASCA 173 [51] - [52].
Temporary stays have been granted by courts where there are pending related proceedings, having regard to various considerations, including, relevantly:[19]
1.which proceedings were commenced first;
2.whether the termination of one proceeding is likely to have a material effect on the other;
3.the public interest;
4.how far the proceedings are in each court;
5.that the law should strive against permitting multiplicity of proceedings in relation to similar issues; and
6.generally balancing the advantages and disadvantages to each party.
[19] Rayney [48]; Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd [1992] FCA 72; (1992) 34 FCR 287, 291; Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346, 353; Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108 [29]; Palmer v CITIC Ltd [2017] WASC 253 [8] ‑ [9]. See also Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, 590; CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345, 390.
Consideration in this case
I am not satisfied that I should grant a temporary stay, for a number of reasons.
First, the consolidated Appeal Nos 4 and 5 of 2018 were commenced first. It appears that Appeal No 88 of 2019, dealing with Mr Armet's entitlement to workers' compensation for his psychiatric condition, was filed by the employer after the commencement of this action.
Secondly, Mr Armet's claim against the defendant, his former solicitors, is different to and legally distinct from the claims against his employer to be determined in the workers' compensation appeals. Not all of Mr Armet's claims in this action will be determined by the outcome of the workers' compensation appeals. While there is some overlap between the issues in this action relating to damages and the issues in the workers' compensation appeals, there are still a number of claimed expenses and costs which will be unaffected by the outcome of the workers' compensation appeals. The exercise of the court's discretion to stay this action, even temporarily, involves a significant interference with Mr Armet's right to pursue this action, something with which the court should not lightly interfere.
Thirdly, I am not satisfied that it is in the public interest for the defendant's application for a stay of this action to be granted. In all of the circumstances to order a temporary stay of these proceedings pending the outcome of the workers' compensation appeals will not promote the efficient or expeditious resolution of the whole of the dispute between Mr Armet and the defendant in this action.
Fourthly, the workers' compensation appeals will proceed to determination first. As discussed at the hearing of this application, this action has not yet been listed for trial. The next step is to list the matter for a listing conference. However, since the hearing of this application, as a result of the COVID-19 pandemic, there have been changes to the court's listing procedures.
In a Public Notice dated 3 April 2020, the court advised that no new trials will be listed prior to 30 October 2020 provided that an application can be made to a judge for an expedited trial. All appeals listed, however, will proceed.
The result is that this matter is unlikely to be listed for trial for many months. By that time, decisions on the workers' compensation appeals are likely to be delivered.
Fifthly, while the outcome of the workers' compensation appeals may have an impact on the assessment of Mr Armet's claim for loss and damage in this action, at this stage, pending a determination in those appeals, I do not consider that there will be a risk of conflicting findings arising from multiplicity of proceedings in relation to the same issues.
This is because once the workers' compensation appeals are decided in this court, as a matter of judicial comity, the trial judge who determines Mr Armet's claims for damages in this action will follow the decision of the judge or judges of this court in the workers' compensation appeals, unless convinced that the judgment was wrong.[20] The trial judge will also be bound by the Court of Appeal's construction of the relevant provisions of the Act as set out in Armet v CFC.
[20] Mustac v Medical Board of Western Australia [2007] WASCA 128 [38]; La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201, 204; Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150 [68] - [88].
Finally, I need to balance the advantages and disadvantages to each party. Mr Armet strenuously opposes any stay of this action. I am conscious that if Mr Armet is unsuccessful in the workers' compensation appeals, he will take matters further and appeal the decisions. He told me during the course of the hearing that if he is not successful he intends to appeal to the Court of Appeal and then 'if the Court of Appeal doesn't understand', he will appeal to the High Court.[21]
[21] ts 20 - ts 21.
For practical reasons, however, if Mr Armet continues to pursue the defendant for damages relating to the injuries of tinnitus, plantar fasciitis, neck pain, hair loss and psychiatric injury pending further appeals, in my view this will be more of a disadvantage for Mr Armet than it will be for the defendant.
Mr Armet will be expected to ultimately prove his claim for damages in this action. If he has no established or proven entitlement for workers' compensation against his employer for any injury, he may be unable to prove his claim for loss and damage in respect of that injury against the defendant.
Having balanced all of the relevant factors, I am not satisfied that it is in the interests of justice to stay the whole of the proceedings in this action pending the outcome of the workers' compensation appeals.
Accordingly, in the circumstances as they presently stand, I dismiss the defendant's application.
Depending on how matters progress and circumstances change, it may be open to the defendant to bring a further stay application.
I would note, however, that there are alternative options to a stay of the proceedings. For example, it may be possible to obtain an order to have separate trials on liability and quantum, with the liability of the defendant to be determined first. Whether the trials of liability and quantum should be held separately will, of course, be a matter for determination if such an application is made, based on the circumstances which then exist.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SC
Court Officer14 MAY 2020
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