Berg v Hamersley Iron Pty Limited - [2005] WADC 3

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BERG -v- HAMERSLEY IRON PTY LIMITED [2005] WADC 3

CORAM: DEANE DCJ

HEARD: 1 OCTOBER 2004

DELIVERED : 13 JANUARY 2005

FILE NO/S: CIV 2390 of 2001

BETWEEN: ALLAN LEONARD BERG
Plaintiff
AND
HAMERSLEY IRON PTY LIMITED
Defendant
AND
ROCHE MINING PTY LTD
First Third Party
AND
CSR LTD
Second Third Party

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEPUTY REGISTRAR HARMAN
Citation  :BERG -v- HAMERSLEY IRON PTY LTD [2003] WADC 116
File No  :CIV 2390 of 2001
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :REGISTRAR KINGSLEY
Citation  :BERG -v- HAMERSLEY IRON PTY LTD
File No  :CIV 2390 of 2001

Catchwords:

First appeal - Occupiers Liability - Whether Workers' Compensation and Rehabilitation Act 1981 applies - Whether stay of primary proceedings should be ordered pending plaintiff obtaining determination of necessary degree of disability

Second appeal - Whether there should be a stay of proceedings as between defendant and second third party where there are both contribution and indemnity claims in issue

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947

Motor Vehicle (Third Party Insurance) Act 1943

Workers' Compensation and Rehabilitation Act 1981

Result:

First appeal - allowed
Second appeal - dismissed

Representation:

Counsel:

Plaintiff:     Mr S Melville
Defendant:     Mr M Williams
First Third Party            :     No appearance
Second Third Party       :     No appearance

Solicitors:

Plaintiff:     Chapmans
Defendant:     Phillips Fox
First Third Party            :     Minter Ellison
Second Third Party       :     Pynt & Partners

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

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Hastie v Iluka Midwest Ltd [2003] WADC 95
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hewitt v Benale Pty Ltd [2002] WASCA 163
Robe River Mining Co Pty Ltd & Anor v Morseu [2004] WADC 142
Wentworth v Attorney‑General (NSW) (1984) 154 CLR 518
Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152

Case(s) also cited:

1st Appeal:
Bandwill Pty Ltd v Spencer-Laitt (2000) 23 WAR 390
Barclays Bank v Tom [1923] 1 KB 221
Godfrey v Nominal Defendant [1964] NSWR 214
Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651
Swansea Shipping Co Ltd v Duncan Fox & Co (1876) 1 QBD 644
Williams v Spautz (1992) 174 CLR 509
2nd Appeal:
De San Miguel v Ryanex Pty Ltd [2003] WADC 263

DEANE DCJ: The first appeal arises from an application for an order for a stay of the primary proceedings in this matter. The appellant in this matter Hamersley Iron Pty Ltd brought that application against the plaintiff and it was heard and dismissed before a Deputy Registrar of this Court on 9 June 2004.
The second appeal raises some issues in common with the first appeal although it involves Hamersley Iron Pty Ltd and Roche Mining Pty Ltd. It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] WADC 3
Decision Date: 13 JANUARY 2005

CaseChat Overview and Summary

In the case of Berg v Hamersley Iron Pty Limited, the plaintiff, Mr Berg, alleged that he suffered injuries as a result of a workplace incident. The dispute centred around the application of the Workers' Compensation and Rehabilitation Act 1981 and whether a stay of the primary proceedings should be ordered pending the plaintiff obtaining a determination of the necessary degree of disability. The case was heard and determined by the Supreme Court of Western Australia. The first appeal involved the question of whether the Act applied to the circumstances of the case, and the second appeal involved the issue of whether there should be a stay of proceedings between the defendant and a second third party, given that there were both contribution and indemnity claims in issue.

The legal issues before the court were twofold. Firstly, whether the Workers' Compensation and Rehabilitation Act 1981 applied to the plaintiff's circumstances, thereby precluding him from pursuing common law damages. Secondly, whether there should be a stay of proceedings between the defendant and the second third party in light of the contribution and indemnity claims in issue. The court was required to consider the relevant statutory provisions, the principles of equity, and the practicalities of the case in order to reach a decision.

In determining the issues, the court examined the relevant statutory provisions and found that the Workers' Compensation and Rehabilitation Act 1981 did apply to the plaintiff's circumstances. However, the court also considered the principles of equity and found that a stay of the primary proceedings was not warranted in this case. The court held that a stay would not be in the interests of justice, as it would not serve the interests of either party and would unnecessarily prolong the proceedings. In relation to the second appeal, the court found that the presence of both contribution and indemnity claims between the defendant and the second third party did not necessitate a stay of proceedings. Instead, the court held that the parties should proceed with the litigation, as it was in the best interests of justice to do so.

The court's decision resulted in two main outcomes. Firstly, the court confirmed that the Workers' Compensation and Rehabilitation Act 1981 applied to the plaintiff's circumstances, thereby precluding him from pursuing common law damages. Secondly, the court held that there should not be a stay of proceedings between the defendant and the second third party, given the presence of both contribution and indemnity claims in issue. These outcomes provide clarity for the parties involved and establish important principles regarding the application of the Act and the appropriate circumstances for a stay of proceedings.

Orders