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

1. 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. 

2. 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 is an appeal from a decision of a registrar of the District Court delivered on 29 April 2003 where it was ordered that the third party proceedings be stayed.  Each of these matters is a hearing de novo; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26. In these reasons the appeals will be dealt with in the above order.

First Appeal

1. Some material by way of background to this matter is to be found in the affidavit of Shane Ambrose Orians, an employee of Rio Tinto Ltd, the parent company of Hamersley Iron Pty Ltd, which was sworn 5 February 2004.  Affidavit evidence is admissible to demonstrate that there is a complete legal bar to proceedings such that they must fail; Dey v Victorian Railways Commissioners (1949) 78 CLR 62. Hamersley Iron Pty Ltd is engaged in the mining business and relevant to this matter owned and operated a mine known as Brockman No 2 Detritals Deposit in Western Australia. In late August 1991 it contracted with CSR Ltd, the second third party in these proceedings, to carry out certain works associated with the provision and operation of mining, processing and infrastructure facilities at the mine. That part of the contract dealing with work as well as the commencement, execution and completion of the works is annexed to Mr Orians affidavit "SAO2". Annexure "SAO1" is a copy of the execution clause of the contract. The entire contract, which is voluminous, and contains much material irrelevant to this application, is not before the Court.

2. Although Hamersley Iron Pty Ltd owned the mine site it carried out some, but not all of the works on site.  CSR Ltd carried out some of the work pursuant to the contract, but chose to subcontract part of the carrying out of the works to Roche Mining Pty Ltd, the first third party in this action.  For the purposes of this aspect of the proceedings Roche Mining Pty Ltd may be regarded as inactive.  It was Roche Mining Pty Ltd however, who employed the plaintiff, Mr Berg.  CSR Ltd, according to Mr Orians' affidavit, mined, crushed and loaded ore at the mine further to the contract which was directly part of Hamersley Iron Pty Ltd's mining business, and necessary for it to operate the mine.  Mr Orians deposes that his belief that Mr Berg was employed by Roche Mining Pty Ltd is based on the contents of an injured worker form, dated 26 October 1995, annexure "SAO3", which appears to bear the signature of Mr Berg.  That document states that at the time of the occurrence at the Brockman Mine site, the plaintiff was on duty and driving a service truck in and around a pit when he sustained an injury.  In what appears to be a different hand the document states that the employer is Roche Bros Pty Ltd, whose major activity is contract mining. 

3. The plaintiff claims damages against Hamersley Iron Pty Ltd, the appellant, in negligence for personal injuries allegedly sustained at it's premises on 21 October 1995.  On information provided by Hamersley Iron Pty Ltd's manager of business planning, Mr Orians deposes that the plaintiff was driving a service truck at the mine further to Hamersley Iron Pty Ltd's contract with CSR Ltd as part of the mining and processing work which CSR Ltd was performing for it, pursuant to the contract, and which Roche Mining Pty Ltd was performing for CSR Ltd further to the their sub‑contract.  In addition it is said that the service truck driven by the plaintiff at the relevant time was owned by Roche Mining Pty Ltd and was not a registered motor vehicle as defined by the Motor Vehicle(Third Party Insurance) Act 1943.  The basis of this information is found in annexure "SAO 4" of the affidavit. 

4. As a result Hamersley Iron Pty Ltd argues that the plaintiff was present at the mine site on the date of the alleged accident pursuant to its contract with CSR Ltd and in turn, their subcontract with Roche Mining Pty Ltd.  In addition it submits that the plaintiff was carrying out part of the mining and processing work at the mine site further to both the primary contract and the subcontract.  This it is said supports the argument that Hamersley Iron Pty Ltd is the deemed employer of the plaintiff for the purposes of the Workers' Compensation and Rehabilitation Act ("the Act") by virtue of the extended definition of "principal" in s 175(6) of the Act. Section 175(1) requires that there must be a contract between the principal as defined in the section, and another entity, being the contractor. The contract must be for the execution of any work by or under the contract which in my view is clearly the case in this matter. Therefore, subject to meeting the criteria both the principal, in this case being Hamersley Iron Pty Ltd and the contractor, in this case being CSR Ltd would be deemed, in combination with Roche Mining Pty Ltd (the actual employer of the plaintiff), to be the employer. In reference to par 10 of the affidavit of Catherine Anne Elphick, sworn 19 September 2003, it is said that the plaintiff claimed and was paid workers' compensation from his employer in relation to injuries he allegedly sustained in the accident. The plaintiff's claim for damages against Hamersley Iron Pty Ltd is subject to the constraints in Part 1V Div 2 of the Act; Hewitt v Benale Pty Ltd [2002] WASCA 163.

5. Section 175(6) of the Act states that where sub‑contracts are made

   (a)Principal includes the original principal for whom the work is being done and each contractor who constitutes himself a principal with respect to a sub‑contractor by contracting with him for the execution by him of the whole or any part of the work; 

   (b)Contractor includes the original contractor and each sub‑contractor; and 

   (c)A principal's right to indemnity is a right against each contractor standing between the principal and the worker.

6. It would therefore appear that the definition of contractor extends to not only the original contractor, but each subcontractor, and this being the case there is therefore a contractual chain between Hamersley Iron Pty Ltd and CSR Ltd and Roche Mining Pty Ltd, being the ultimate employer of the plaintiff.  The deeming provision therefore extends to include Hamersley Iron Pty Ltd which argues that it is incumbent upon the plaintiff to overcome certain hurdles in order to demonstrate that he is entitled to an award of damages.  As the claim against Hamersley Iron Pty Ltd does not involve the awarding of common law damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies, it is further submitted that Part IV Div 2 of the Act applies; Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152.

7. This requires that the plaintiff either agree with the employer, in this case the deemed employer being Hamersley Iron Pty Ltd, that the plaintiff has a degree of disability of not less than 30 per cent, or alternatively, there has been a determination by the Conciliation and Review Directorate that the plaintiff's degree of disability is not less than 30 per cent. According to par 5 of Catherine Anne Elphick's affidavit sworn about 21 December 1999, pursuant to s 93E(3)(b) of the Act, the plaintiff filed an election to retain a common law claim with the Conciliation and Review Directorate estimating his degree of disability to be 10 per cent, annexure "CAE 1". It was then determined that the plaintiff did not satisfy the requirements in order to make an election pursuant to s 93E(3)(b) as deposed to in par 6 of Ms Elphick's affidavit; annexure "CAE 2". Paragraph 7 of that affidavit deposes that since that time the plaintiff has not made a further application to the Directorate for a determination of his degree of disability, and further, the contents of the medical reports annexed to that affidavit would suggest that there is little likelihood of the plaintiff establishing a degree of disability of more than 30 per cent. That being the case Hamersley Iron Pty Ltd argues that the court is precluded from awarding the plaintiff damages, even if there were to be a finding that it breached any duty of care owed to the plaintiff, which in any event is in dispute.

8. By letter dated 24 January 2000, the Conciliation and Review Directorate advised the plaintiff that it did not consider he had met the requirements to make an election pursuant to the provisions of s 93E(3)(b) of the Act and reg 19M(1), which Hamersley Iron Pty Ltd argues is a clear rejection of the plaintiff's purported election, and therefore there can be no election established. That is not to say however, that it is not within the province of either the plaintiff or the Conciliation and Review Directorate to obtain or make an assessment of the relevant degree of disability which would entitle the plaintiff to obtain an award of damages in the event that liability was established.

9. In the end result Hamersley Iron Pty Ltd argues that there is no evidence currently before the Court which would establish that the plaintiff has obtained a appropriate disability determination. 

10. The plaintiff's position is that Hamersley Iron Pty Ltd is not a deemed employer and therefore whether the plaintiff has a disability exceeding the relevant percentage or not is irrelevant. It is argued that the onus is on Hamersley Iron Pty Ltd to persuade the court it is appropriate to order a stay in this matter, and submits that merely because it raises s 175 of the Act it does not mean that the plaintiff's action amounts to an abuse of process. Further, the plaintiff does not concede that Hamersley Iron Pty Ltd can establish that the criteria in s 175 of the Act apply in this case. Rather, it is said that the plaintiff is entitled, because it is a threshold question, to proceed to trial and put Hamersley Iron Pty Ltd to proof that s 175 of the Act applies in the ordinary way, by reference to oral and documentary evidence, as opposed to affidavit evidence.

11. While the plaintiff in the pleadings does not concede he is employed by Roche Mining Pty Ltd, the first third party, in annexure "SAO3" to Mr Orians' affidavit of 5 February 2004, the plaintiff would appear to nominate that entity as his employer.  The plaintiff also takes the point that there is no contract of employment, however, par 10 of Mr Orians' affidavit of 5 February 2004 contradicts this.  The document purports to be signed by the plaintiff, and in my view it defies common sense that he would sign an incomplete document or a document that was not true, so for this reason the belief deposed to in the affidavit on its face should be accepted for the purpose of these proceedings.  I reject the submission that in order for the Court to be persuaded this is not a triable issue, it must have before it the full contract of employment.  On the basis of lack of material contradicting this from the plaintiff, there is in my view no reason to reject the assertion made by Hamersley Iron Pty Ltd regarding the plaintiff's employment. 

12. Section 175(7) of the Act states:

    "Where the disability does not occur in respect of premises on which the principal has undertaken to execute the work or which are otherwise under his control or management, subsections (1) to (6) inclusive do not apply." 

13. Whilst this section would appear to be disjunctive, the fact is the plaintiff could not succeed against Hamersley Iron Pty Ltd if it did not have control over the mine site, because this is a matter involving occupier's liability. Counsel for the plaintiff however, argues that whilst the action is against Hamersley Iron Pty Ltd as the occupier of the premises, nonetheless the daily running of the site was under the direct control of Roche Mining Pty Ltd and CSR Ltd, by reference to par 2.5 of the re‑amended defence. The plaintiff's argument or proposed argument at trial would appear to be that s 175(7) applies, and therefore the pleaded defence must fail. Counsel for the plaintiff appeared to suggest that the argument will be the plaintiff's disability did not occur on premises which were under the "day to day" control and management of the principal, but those words do not appear in s 175(7) and therefore I cannot see any particular merit in this submission by counsel for the plaintiff. In the end result, counsel for the plaintiff appeared to concede that the alleged disability occurred at the location nominated at the premises, namely the mine site. As best as I could understand it the plaintiff argues that s 175 of the Act does not apply, and this is purely a case regarding occupier's liability, therefore issues regarding the deemed relationship and percentage of disability are irrelevant. I do not consider on the material available that this has any weight.

14. It is necessary, however, to consider par 31 of Western Metals Zinc NL and Wesfarmers Transport Pty Ltd (supra) argument where the Court stated: 

    "Of course, it would plainly be vexatious to institute proceedings where there was no possibility that it could ever be established that a relevant degree of disability existed, and in an appropriate case such a proceeding might be struck out. Further, it would generally be oppressive to require a defendant to incur expense in defending proceedings where it was not clear whether or not damages could be avoided, and one would usually expect the court to order a stay of proceedings until the provisions of s 93E(3) had been complied with."

15. It would seem that if this were a case where there was a complete lack of evidence before the Court to support Hamersley Iron Pty Ltd's application, it would be appropriate to proceed to trial, but that in my view is not the case.  This is an action that has been commenced by the plaintiff, and if it is asserted that there is no contract of employment between him and for example, Roche Mining Pty Ltd, then notwithstanding the argument to the contrary put by counsel for the plaintiff, one would in my view expect the plaintiff to place some material before the Court to demonstrate that is the case, rather than simply putting any of the other parties to proof.  Further, the Court was advised that the contract of employment in its entirety has been discovered, and that there is nothing since that qualifies the document or supersedes it.  At this point there is nothing before the court to suggest the assertions or statements in the affidavits of either Mr Orians or Ms Elphick are inaccurate or unreliable. 

16. As to s 175(7) of the Act, clearly this is a claim against Hamersley Iron Pty Ltd as an occupier. It is evident for a finding to be made, that there is a duty of care owed by a person or entity as an occupier, to a person entering the premises, and the occupier has a degree of control over those premises. I accept the argument on behalf of Hamersley Iron Pty Ltd that the issue of control is central to the finding of both occupation and the plaintiff's allegations of negligence against it. In part, the plaintiff's allegations against it relate to an assertion that Hamersley Iron Pty Ltd had control over the premises, and therefore owed the plaintiff a duty of care.

17. There is an inherent power in the court to prevent its processes from being abused by way of ordering a stay of proceedings: Wentworth v Attorney‑General (NSW) (1984) 154 CLR 518. Litigation is expensive and time consuming, and for that reason the courts are charged with a responsibility for ensuring that public resources are applied as efficiently as possible. To this end, the court must closely monitor the manner in which parties to a dispute seek access to those resources, and the way in which they are expended; Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334. In appropriate cases the purpose of interlocutory proceedings such as an application for stay of proceedings might be seen as a method of avoiding litigation which has little or no point and which will involve considerable expense; Hastie v Iluka Midwest Ltd[2003] WADC 95; Robe River Mining Co Pty Ltd & Anor v Morseu [2004] WADC 142.

18. In this matter on the material currently available to the Court, there is evidence which on the face of it indicates a deemed employment relationship between Hamersley Iron Pty Ltd and the plaintiff for the purposes of the Act. Further, there is evidence that no election has been made pursuant to Part IV Div 2 of the Act in the sense that the purported election made by the plaintiff has been rejected by the Conciliation and Review Directorate. In any event, even if it were to be found that the purported election was valid, the degree of disability is of too low a degree to entitle the plaintiff to a damages award pursuant to the legislation. Finally, the current medical evidence before the Court strongly indicates that the likelihood of a determination entitling the plaintiff to obtain an award of damages occurring at this point is relatively remote. If, however, the plaintiff's medical condition were to deteriorate or he were to obtain further evidence to support his claim, any stay of proceedings ordered may be lifted, providing the Court was satisfied that an award of damages would be appropriate were there to be a finding of liability at trial. For these reasons it is in my view appropriate that a stay of proceedings be granted and this appeal is allowed.

1. For the sake of completeness and without repeating the submission of counsel, it is noted that CSR Ltd support the argument of Hamersley Iron Pty Ltd in this particular appeal. 

2. Before proceeding to consider the merits of the second appeal, it is appropriate and necessary to comment upon an observation made by the Deputy Registrar in hearing this application at first instance.  In his reasons for decision he considered the issue as to whether a Registrar of the Court (I understand this to be a reference to the District Court) was bound by any decision of a Judge of the District Court.  The Deputy Registrar went on to state: 

   "I also accept that at the very least the determination of a Judge of this Court ought be considered, be persuasive.  It is a matter of whether as the defendant would contend I am bound to follow the course adopted by French J.  Although there is a right to appeal a determination of a registrar to a judge, the jurisdiction exercised by a registrar in chambers coincides with the jurisdiction exercised by a judge in chambers.  In terms of hierarchy or authority, registrars and judges of this Court are at the same level as a justice of the Supreme Court.  The issue of status has no bearing on hierarchy.  A registrar is no more bound by the determination of a judge than is any other judge of this Court.  The only binding authority is a determination of the Full Court of the Supreme Court." 

3. In these reasons for decision, it is perhaps not appropriate to dwell at great length on the observations of the Deputy Registrar.  It is certainly the case that the judicial officers of this Court are bound by determinations of the Supreme Court.  I consider, however, to state that a Registrar or indeed Deputy Registrar of the District Court is not bound by a determination of a Judge of the District Court somewhat misconceives the notion and purpose of hierarchy and authority of Registrars and Judges within the District Court.  In my view with respect, it is the case that generally, unless there is sound reason not to do so, Registrars and Deputy Registrars of the Court are bound by decisions of the Judges of the District Court.  If that were not the case there would be the potential for, if not the reality of, a significant number of unnecessary appeals to the Judges of the Court. 

The second appeal

1. In this matter Hamersley Iron Pty Ltd appeals against a decision whereby a Registrar of this Court ordered a stay of the third party proceedings in this action.  The basis of the stay was similar to the basis upon which Hamersley Iron Pty Ltd seeks a stay of proceedings in the first appeal.  Essentially it applies for directions in relation to the second third party proceedings against CSR Ltd, which argues that if the first appeal is successful and the plaintiff's claim against Hamersley Iron Pty Ltd is stayed it ought to follow that the third party claim against CSR Ltd should also be stayed, because the relief and scope of Hamersley Iron Pty Ltd's claims against CSR Ltd depends on the outcome of the plaintiff's claim against Hamersley Iron Pty Ltd.  Further if after the plaintiff's claim is stayed, if that is to be the case, the plaintiff fails to obtain the relevant determination under the Workers' Compensation and Rehabilitation Act ("the Act"), the interim continuation of Hamersley Iron Pty Ltd's claim against CSR Ltd will involve unnecessary and wasteful expenditure of costs and resources. For that reason CSR Ltd argue that both the primary and third party proceedings should be stayed, until the plaintiff obtains the requisite determination under the Act.

2. Hamersley Iron Pty Ltd argues, however, that this submission places undue emphasis on only one aspect of the third party proceedings.  It is said that there are two claims for relief by Hamersley Iron Pty Ltd against CSR Ltd, the first being for an indemnity against any liability the defendant has to the plaintiff and the defendant's costs of defending the action further to an indemnity clause contained in the contract between the defendant and CSR Ltd, and also a contribution to any costs or damages that the defendant, Hamersley Iron Pty Ltd, is ordered to pay the plaintiff pursuant to the Law Reform (Contributory Negligence and Tortfeasors) Act. 

3. Hamersley Iron Pty Ltd's concern is that if the third party proceedings were to effectively be put on before the primary action, the end result would be for CSR Ltd to assume conduct of Hamersley Iron Pty Ltd's defence relevant to the primary action. It argues that the order for a stay which has been made in relation to this aspect of the case failed to take into consideration the fact that there is a separate and primary form of relief claimed in the third party proceedings, being an indemnity under a contract. Section 86 of the Act states that nothing in the Act effects any liability that exists independently of the Act, except as expressly provided by the Act and no provision in that legislation abrogates, restricts or in any way effects Hamersley Iron Pty Ltd's cause of action against CSR Ltd for an indemnity, further to an indemnity clause contained in a contract. For this reason it is said that this is a separate and distinct issue. Hamersley Iron Pty Ltd contend that to grant a stay in third party proceedings before any directions are made, (given that in those proceedings no defence has been filed, no discovery has been provided nor has there been an order that the primary and third party proceedings be heard together and that the third party be bound by the result in the primary proceedings) puts it at a distinct disadvantage. It says it would not have difficulty with a stay being granted if the only ground of relief being claimed was one for contribution under the concurrent tortfeasors legislation as clearly in their submission CSR Ltd is also a deemed employer. In essence they agree it would make considerable sense were this to occur if that were the only basis for both the primary and third party proceedings to be stayed. That, however, according to their argument is not the situation in relation to the indemnity claim. It argues it should be in a position to pursue the indemnity claim as distinct from the contribution claim and submits that it makes no difference that these two issues may involve essentially the same factual scenario in some respects. In the final analysis Hamersley Iron Pty Ltd suggests that the two claims are quite distinct and it is inappropriate if a stay is granted that it should be a blanket stay in the sense that it affects the contribution claim.

4. It concedes that if after trial CSR Ltd were determined to be the plaintiff's deemed employer under the Act and the plaintiff were determined not to have satisfied the requirements of s 93E of the Act then CSR Ltd would not be liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act.  With reference to the affidavit of Catherine Anne Elphick sworn 19 December 2003 Hamersley Iron Pty Ltd concede that as at 21 December 1999 the plaintiff was determined to have a 10 per cent disability of his lower back, but says that currently there is no authority for the proposition that issue estoppel (res judicata) applies to the determination of a degree of disability further to the Act and therefore the plaintiff is not estopped from applying for a further determination at any time up until a trial date. In those circumstances it is said any possible defence raised by CSR Ltd in relation to Part IV, Div 2 of the Act is not a complete defence until the date of trial.

5. Counsel for CSR Ltd, the respondent in this appeal, submits that the position is that if the first appeal were to fail and no stay were to be ordered then the second appeal should succeed and the stay be lifted because the matters then should proceed together. 

6. As has been previously noted relevant to the first appeal counsel for CSR Ltd submits that the plaintiff was an employee of Roche Mining Pty Ltd and a deemed employee of both Hamersley Iron Pty Ltd and CSR Ltd. Further the alleged accident occurred on 21 October 1995 in the course of the plaintiff's employment, as a result of which weekly payments under the Act commenced on 22 January 1996. The plaintiff purported to elect to retain a common law claim under s 93E(3)(b) of the Act but that election was lodged out of time and claimed a degree of disability of 10 per cent. In order to succeed in the claim against Hamersley Iron Pty Ltd the plaintiff must satisfy the provisions of s 93E(3)(a). It is argued that given the terms of the plaintiff's purported election and the contents of the medical reports currently available the plaintiff's chance of securing an assessment of a degree of disability of not less than 30 per cent are remote. For these reasons the plaintiff's claim ought be stayed until the requisite degree disability determination is obtained.

7. Counsel for CSR Ltd concedes that there is also a claim for contractual indemnity, but questions why it should be put to the expense of mounting a defence in relation to that aspect of the matter when it is unclear what or how many issues ultimately are going to be in contention.  Costs and resources will be incurred in defending the claim based not only on the indemnity aspect but also on the concurrent joint tortfeasors claim.  The end result it is argued will be that a significant amount of resources on the part of Hamersley Iron Pty Ltd, Roche Mining Pty Ltd and CSR Ltd will be expended.  It is emphasised that there is a potential for considerably expenditure and waste of resources by way of Court time and associated costs in having third party proceedings continuing in circumstances where there is a significant likelihood that the claim between Hamersley Iron Pty Ltd and the third party may be in relation to costs of the proceedings or in relation to non‑recoverable costs of the proceedings from the plaintiff.  If the plaintiff were able to obtain the necessary determination, which CSR Ltd say is highly unlikely, then that claim will come to an end, leaving a residual claim in relation to the issue of costs as between CSR Ltd, Hamersley Iron Pty Ltd and possibly Roche Mining Pty Ltd.  Although it would involve some overlap in relation to issues such as the circumstances of the accident, which cannot be avoided, nonetheless it is said that the issue of costs could be dealt with relatively expeditiously and comparatively inexpensively.  For this reason it is an appropriate situation in which this Court should exercise its discretion and if the first appeal succeeds and a stay is granted, then the stay against the third party should continue and the second appeal should therefore fail. 

8. Hamersley Iron Pty Ltd says that even if the plaintiff were to have his action dismissed or he were to decide to discontinue it on the basis of being unable to obtain the relevant assessment of degree of disability, there would remain the issue of the contractual indemnity between Hamersley Iron Pty Ltd and CSR Ltd which would be pursued.  On current indications that would mean Hamersley Iron Pty Ltd would have to proceed through a number of interlocutory steps and procedures which would involve allocating exactly the same amount of expenditure in costs and time to deal with those issues and so it questions why in that sense the inevitable should be delayed. 

9. At this point in time there is no concession made by the third party relevant to the indemnity claim and assuming that the claim will be denied, it is submitted there is no basis for the Court impeding the progress of the distinct and separate claim made by Hamersley Iron Pty Ltd against CSR Ltd.  Hamersley Iron Pty Ltd has a concern that if the plaintiff were to obtain determination of a relevant degree of disability in the future he would press for trial dates in circumstances where there were third party proceedings in an embryonic state.  If the defendant sought an order for the third party proceedings to be tried simultaneously, as in all likelihood it would, there would be considerable problems because the third party and a potential fourth party, would not be in a position to proceed to trial.  This would prejudice the defendant which has pursued third party proceedings but which would have been thwarted in that endeavour by a stay being ordered.  It is argued that Hamersley Iron Pty Ltd, should be permitted to pursue a legitimate cause of action which is unconnected with a claim for contribution under the principles of concurrent tortfeasors law.  In the absence of a concession that the indemnity claim will be met Hamersley Iron Pty Ltd argues it is entitled to pursue that claim and decide whether it wishes to incur the expense of pursuing the contractual indemnity claim to a preliminary trial, with a view to obtaining a declaration that the third party indemnified and assumed conduct of its defence, or whether it simply allows the third party proceedings to reach a stage whereby there is mutual discovery.  It is argued that the stay of proceedings which presently exists, in the absence of any third party directions, in effect prevents an efficient management of the Court's time and resources. 

10. Whilst there is considerable force and merit in that argument, the resolution of the second appeal essentially involves a balancing exercise that is highly practical in nature.  Both counsel for Hamersley Iron Pty Ltd and CSR Ltd made it plain in their submissions and in argument on the hearing of this appeal that as matters currently stand the possibility of the plaintiff obtaining the necessary determination as to a degree of disability are remote.  If that is correct then what remains is the issue of costs, which will not involve great expenditure of resources and which could be dealt with in a simple and considerably more efficient manner if one were to wait and see what progress, if any, is made in relation to the plaintiff's claim.  For these reasons on balance I take the view that the stay ordered by the Registrar in this matter should remain in place and this appeal should be dismissed. 

11. I will hear counsel as to further orders, if any, that are required relevant to each of these two appeals.