Berg v Hamersley Iron Pty Limited - [2004] WADC 111

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BERG -v- HAMERSLEY IRON PTY LIMITED [2004] WADC 111

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 20 APRIL 2004

DELIVERED : 9 JUNE 2004

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

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for stay of proceedings - Workers' Compensation and Rehabilitation Act 1981, s 175 - Action not entered for trial - Case management

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

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):

Hastie v Iluka Midwest Limited [2003] WADC 95
The State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146

Case(s) also cited:

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Day v Victoria Railways Commissioners (1949) 78 CLR 62
De San Miguel v Ryanex Pty Ltd [2003] WADC 263
Hewitt v Benale Pty Ltd [2002] WASCA 163
Wentworth v Attorney-General (NSW) (1984) 154 CLR 518

DEPUTY REGISTRAR HARMAN: The plaintiff's claim in the action is for damages for loss sustained by personal injury. According to his pleading, at the time that the plaintiff sustained the injury he was at premises on which the defendant conducted mining and in the course of his employment was driving a vehicle on a road.
By pleading that it is entitled to rely on s 175 of the Workers' Compensation and Rehabilitation Act 1981 the defendant has raised the issue of the application of s 93E(3) of the same Act to the action. The significance of the impact of s 93E(3) is that absent the satisfaction of its terms the Court would be prohibited from awarding damages to the plaintiff.
By the application before the Court the defendant seeks to stay the action. The grounds of the application are that the plaintiff is not entitled to damages and that the continuation of the proceedings amount to an abuse of process. The onus is on the applicant to establish that it is appropriate for the Court to take that step.
As I understand the defendant's submissions the proposition that the plaintiff is not entitled to damages arises because either the Court would recognise that he has no present entitlement because s 93E(3) has not been satisfied or that on the evidence before it the Court would assess that he could not achieve that result.
In putting the first ground the defendant introduced the prospect that the failure to satisfy the terms of s 93E(3) establishes that the plaintiff does not have a prima facie case.
In my opinion it is meaningless to speak of the want of a prima facie case in the absence of there being any obligation on the part of the plaintiff to establish such a case. In any event, the satisfaction of s 93E(3) would have no bearing on any assessment of the plaintiff's case.
Otherwise, presently the case is not at the point at which s 93E(3) is expressed to have application. Accordingly, it is of no consequence that the plaintiff has not yet made provision to enable the Court to grant the relief sought.
The alternative ground is that the Court would assess that the plaintiff could not satisfy s 93E(3). It is a matter of considering two more fundamental points. The first is that any application made under s 93E(3) would not be determined by the Court. The second is as to whether it would have been appropriate to do so simply because the defendant has chosen to raise the issue. As much as a robust approach to litigation on the part of the Court may favour intervention given any opportunity, one may discern a greater virtue in the plaintiff's failure to respond.
Even if the plaintiff had chosen to respond it is difficult to see that the Court would have anything definitive or even useful to say as to the plaintiff's prospects of success in satisfying s 93E(3).
I make similar observations in relation to the proposition that the Court would make a determination in favour of s 93E(3) having an impact on the action. The fact that the defendant has chosen to file evidence in relation to the issue is no more than a logical response to the necessity generated by the application. That the application has been made does not advance the case for the Court to make a determination. The primary consideration is not that the issue might be determined but whether it ought be determined. I am not familiar with a practice whereby issues in an action are determined other than at trial.
I suspect that if the Court were motivated to consider embarking on any evaluation of the plaintiff's case that it would be persuaded to do so in order to evaluate whether absent the plaintiff establishing jurisdiction for the Court to award damages for his claim the continuation of the proceedings would amount to abuse of the Court's process.
The constitution of the continuation of the proceedings as the abuse for which the defendant contends suggests that there may be something significant about the stage to which the action has progressed towards trial, however there is nothing to identify that stage. There is nothing to indicate how what otherwise may be taken to have been an unremarkable action has assumed the dimensions of an abuse.
As I have previously stated, regardless of whether it has any application to this case, on its terms s 93E(3) presently has no impact. The extent of any impact beyond its terms is a matter of interpretation. I have some difficulty with the proposition that matters of statutory interpretation are properly considered in the context of an application for a stay.
In enacting s 93E(3) the legislature simultaneously repealed s 93D(4) of the same Act. By each of those provisions the legislature erected an impediment to recovery of damages by injured workers. There is no reason to consider that by removing the impediment to commencing an action and by imposing an impediment at the point of its disposition that the legislature did not intend to effect change.
Even absent consideration the fortunes of the former s 93D(4) it is clear that the legislature chose to express itself by reference to the last step in the process of litigation. Unless it is appropriate to consider that the legislature was ignorant, by that choice it took into account the fact the impediment to relief that it imposed would take effect at the conclusion of any trial.
It is at least arguable that thereby the legislature intended to confer a benefit on injured workers at least to the extent of reducing costs and the delay associated with the need to obtain leave. It is not a significantly greater step to consider that in the particular context, part of that benefit would be found in the elimination of an impost on what in many cases may be limited means of injured workers.
It is difficult to reconcile the prospect that the continuation of the proceedings amounts to an abuse of process with what I consider to be both a literal reading and a conservative interpretation of the provision. In my opinion it follows that the context in which the application is properly considered includes the intention of the legislature expressed in the provision and the interest of the plaintiff in seeking relief in the action. Ultimately it is a matter of considering what could bring the Court to the point of impeding the progress of the action.
There was no suggestion that the plaintiff maintains anything other than a valid claim in the action. The defendant does not contend that in maintaining the action that the plaintiff is motivated other than to obtain damages for contended loss. The plaintiff's claim falls within the scope of a recognised cause of action. But for consideration of the prospect of the impact of s 93E(3) it is uncontroversial. To this point in the action I am not aware of any suggestion that it amounts to an abuse of process.
As a party to the action the defendant is at risk of determinations of the Court adverse to its interests. It would have sought to protect its interests by the allocation of significant resources to responding to the claim and providing for its representation. It would have generated significant legal costs. It would anticipate the likely future costs would be of a similar order. It may be concerned it may not be able to obtain the benefit provided by an order for costs in its favour. Taking into account the prevalence of actions by injured workers it might consider that it is part of a cohort that considers that it should be so disadvantaged.
In my opinion the broader context reveals the applicant as seeking to derive the maximum benefit provided by the protection accorded by s 93E(3). As much as it wishes to protect its exposure to the claim it seeks to limit its exposure to the costs of representation and the devotion of resources to the exercise constructed by the action. The fact that it may be concerned as to its prospect of recovery of costs would simply add to its motivation.
Ultimately the prospect of the defendant's success in the action in the event that the plaintiff does not satisfy s 93E(3) is no different to the prospect that the plaintiff may fail on any other part of his claim. There is no reason for the Court to choose one aspect of the case brought by the plaintiff as deserving of special consideration. There is no reason to consider that a particular cohort of defendants has a special interest that warrants according them protection from either or both of the need to allocate resources to litigation or the generation of costs.
By embarking on the action the plaintiff has assumed similar risk. Conceivably he may be viewed as part of a cohort upon whom the legislature has accorded some advantage.
Although the considerations that relate to each of the parties are worthy of mention they have resonances in all litigation. And the Court may reflect on whether it should countenance the facility that it provides to the community being utilised to promote claims that may fail.
Simply because the want of satisfaction of the provision presently allows for the success of the claim to be considered in a stark light does not justify the Court viewing the plaintiff as any different to any other litigant. The fact that the plaintiff is not presently entitled to an award of damages is of no more significance than that he is not presently entitled to an award of damages, as he is yet to establish any loss.
One reason for the intervention proposed by the defendant was portrayed in terms that the Court had an interest in that it allocated hearing time to actions and that hearing time is a limited public resource. At the point of allocating hearing time there may be good reason to reflect upon whether it would be reasonable to expect that an injured worker had proceeded in an orderly manner and then satisfied s 93E(3). Whatever the result of that consideration may be, in the case of an action not yet even entered for trial to characterise such failure, as an abuse of process hardly seems to be a proportional response.
That said, where in order to obtain hearing time plaintiffs are required to pay a non-refundable fee, the import of that consideration may properly have less force than otherwise would have been the case. Firstly because the imposition is significant enough to encourage at least efficiency if not to discourage litigants from proceeding to trial. Secondly because thereby a plaintiff would pay a reasonable contribution to the cost of the resource. Otherwise I accept that there remains the prospect that one potentially unsuccessful litigant to whom hearing time may have been allocated would take what otherwise would have been available to another potentially unsuccessful litigant. I am not sure whether either the Court or the public has any particular interest in whether a litigant is successful either as plaintiff or defendant.
Even if it was the case that the Court considered that there was a role for it to play in the regulation of claims made by injured workers it is a matter of considering whether it should act so as to impede claims simply because it could do so or only for good reason. Good reason might be found in the fact that to an unacceptable extent the resources of the Court were being wasted. I was neither informed of nor am I aware of any instance where an injured worker had progressed a case to trial absent satisfaction of s 93E(3).
The defendant also proposed that the interest of the Court was found in the context of the system of case management that it has chosen to implement. The extent to which the public interest is represented in that response is a little difficult to discern. Perhaps I am a little old fashioned but I am still attracted to proposition that the person conducting a case on behalf of a litigant probably has the best view of the amount of time that will be required to prepare the case to be presented at trial. Be that as it may, case management allows for the Court to assess the progress of an action against what is considered to be an acceptable timeframe within which litigation should progress to finality. In operation that system brings parties before the Court for an assessment to be made of any perceived delay and for the imposition of a penalty in the form of an adverse order for costs.
The defendant contended that the implementation of case management demonstrates that the Court takes an active oversight of actions at points prior to the allocation of hearing time. Its proposition being that whilst the satisfaction of s 93E (3) remains outstanding the case represents the prospect that that case management may be frustrated.
I have no difficulty with the submission; it is a matter of whether it would properly be considered to be of any real significance. Regardless of the fact that the Court allocates significant public resources to monitoring the performance of litigants against the timetable, case management only implements a strategy of moving caseload more expeditiously and perhaps thereby encourages efficiency.
Subsequent to the decision of the High Court in TheState of Queensland v JL HoldingsPty Limited (1997) 189 CLR 146 there is little justification for considering case management itself to be of much significance. It is evident for example that it would not consider that the infringement of a case management timetable would constitute abuse of process. The fact that a court may choose to allocate significant resources to case management does not mean that there is reason to do any more than question why that is so. Simply because the Court choses to follow that course should not promote the cause of intervention along the lines that the defendant proposes. Indeed that fact should bring with it a greater degree of circumspection.
In any event an integral part of the system of case management is recognition that any given case should not be governed by the arbitrary time limits that it proposes. It is conceivable that a case where a party is required to undertake extra-curial activity that would engage the need to obtain opinion from experts as to the extent to which a worker is incapacitated may be a candidate for such consideration. The fact that a party has not sought to interfere with the impact of case management may speak more to a perceived lack of objectivity in the Court and the prospect that significant costs may be put at risk. Not to mention the fee for filing such an application.
In my opinion case management provides no impetus for the Court to countenance the defendant's proposal. Perhaps it is curious that in seeking to impede the claim the defendant draws upon the motivation of the Court to move actions along.
As to the impact of case management on this action, it has reached the point where according to the timetable it ought to have been entered for trial. Judging by the content of the file maintained by the Registry it does not appear that the plaintiff has yet entered the matter for trial. The plaintiff being primarily responsible for bringing the claim on for hearing, if I were to attribute breach of case management to either party I would conclude that the plaintiff was in default. On the last occasion that the parties were brought before the Court under the system of case management the date for the action to be entered for trial was extended. Since that time the third party sought and obtained a stay of the third party proceedings although the order is presently the subject of appeal. I am not able to consider what impact that fact may have on any ongoing failure on the part of the plaintiff to enter the action for trial. Further, the application presently before me was made.
In light of my reasons to this point it is difficult to countenance that the Court as having any interest at all, at least not one that would be worthy of consideration at the same level as the interests of the parties.
To the extent that the Court may be motivated to view it appropriate to issue a stay as a result of the plaintiff’s present failure to obtain a determination, it is not a matter of whether an application has been made or how it has progressed but whether taking into account the orderly progress of the action or any accommodation that may properly be accorded to the plaintiff that it would still be possible for him to obtain the determination by the time that the failure to have doe so would have significance.
It seems to me that it is only where the defendant could establish that the plaintiff could obtain no such determination from the statutory authority that it would be appropriate for the Court to contemplate whether it was appropriate to interfere in the conduct of the litigation.
There is no information before me that would enable me to make a determination that the plaintiff would not be able to obtain a determination prior to the Court pronouncing judgment.
The plaintiff's claim in the action refers to events in October 1995. The claim probably falls into the category of cases where there is a measure of apprehension that the plaintiff ought to be encouraged to proceed to trial rather than be impeded.
Finally, during the course of submissions the defendant made reference to the fact that in Hastie v Iluka Midwest Limited [2003] WADC 95 French J determined that in similar circumstances it was appropriate on the pleadings and available evidence to stay the action and that as a Registrar of the Court I was bound by the precedent thereby set.
I imagine that there would be some significant commonality between the facts in that case and in this case. I also accept that at the very least the determination of a Judge of this Court ought be considered to 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.
In Hastie I understand that French J also contemplated that in similar circumstances the Court may strike out a claim. I suspect that the latter comment may have had something to say as to her view of whether a cause of action exists absent authority to award a remedy. The applicant did not seek to address that point.

In the particular context I would speculate that nice points might properly be put to one side. In the process of interfering with the jurisdiction of the Court the legislature may have created a problem for particular plaintiffs. Be that as it may it ought to be taken to have contemplated that plaintiffs would do what is permissible under the legislation and precisely what this plaintiff has done; that is, to commence and maintain proceedings without the benefit of a determination being put in place.
In the circumstances in my view it is appropriate to adopt a conservative course. I have already indicated why it is that the circumstances of this case do not motivate me to consider that in this case the action has past the point where the determination required could not be put in place by the time that it takes effect.
During the latter part of the hearing it became apparent that the defendant may have sought to argue its case on the basis that in the event that the application was unsuccessful it would be appropriate for the Court to make a determination along the lines that the issue of the impact of the relevant provisions of the Workers' Compensation and Rehabilitation Act be determined as a preliminary issue.
It is my appreciation that more often than not there is a tension between both the parties themselves or between a party or parties and the Court as to whether an issue is so appropriately determined. In this case the plaintiff was not disposed to that result. It is always a matter of whether the adoption of such a course would be desirable considering the broader issues to be determined in the action at least at the level that consideration is given to the prospect of different determinations being made in relation to credibility that may be difficult to reconcile.
Against that background I would hesitate to impose something on the plaintiff that had not even been addressed by the application.