Berg v Hamersley Iron Pty Ltd - [2003] WADC 116

BERG -v- HAMERSLEY IRON PTY LTD [2003] WADC 116

Last Update: 28/05/2003

BERG -v- HAMERSLEY IRON PTY LTD [2003] WADC 116
Link to Appeal:	[2005] WADC 3 [2005] WADC 3
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 116
Case No:	CIV:2390/2001	Heard:	29 APRIL 2003
Coram:	REGISTRAR KINGSLEY	Delivered:	26/05/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	4	Judgment Part:	1 of 1
Result:	Stay of proceedings granted
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ALLAN LEONARD BERG HAMERSLEY IRON PTY LTD ROCHE MINING PTY LTD CSR LTD
Catchwords:	Practice Order 19 Rules of the Supreme Court of Western Australia Application by second third party for stay of third party proceedings
Legislation:	Law Reform (Contributory Negligence in Tortfeasors Contribution) Act 1947 Workers' Compensation Rehabilitation Act 1981
Case References:	Nil Banwill Pty Ltd & Anor v Spencer-Laitt & Ors (2000) 23 WAR 390 William & Ors v Spautz (1992) 174 CLR 509

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : BERG -v- HAMERSLEY IRON PTY LTD [2003] WADC 116 CORAM : REGISTRAR KINGSLEY HEARD : 29 APRIL 2003 DELIVERED : 26 MAY 2003 FILE NO/S : CIV 2390 of 2001 BETWEEN : ALLAN LEONARD BERG

Plaintiff

AND

HAMERSLEY IRON PTY LTD

Defendant

AND

ROCHE MINING PTY LTD

First Third Party

AND

CSR LTD

Second Third Party

Catchwords:

Practice - Order 19 Rules of the Supreme Court of Western Australia - Application by second third party for stay of third party proceedings

(Page 2)

Legislation:

Law Reform (Contributory Negligence in Tortfeasors Contribution) Act 1947
Workers' Compensation Rehabilitation Act 1981

Result:

Stay of proceedings granted

Representation:

Counsel:

Plaintiff : No appearance

Defendant : Ms C A Elphick

First Third Party : Ms C L Caine

Second Third Party : Mr S F Popperwell

Solicitors:

Plaintiff : No appearance

Defendant : Phillips Fox

First Third Party : Minter Ellison

Second Third Party : Pynt & Partners

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

Nil

Case(s) also cited:

Banwill Pty Ltd & Anor v Spencer-Laitt & Ors (2000) 23 WAR 390
William & Ors v Spautz (1992) 174 CLR 509

(Page 3)

1 REGISTRAR KINGSLEY: The defendant's chamber summons seeks orders that the second third party do file and serve a defence in the second third party proceedings and that both the defendant and second third party serve a list of documents. The plaintiff's cause of action against the defendant rises out of an industrial accident, which occurred in October 1995. The plaintiff entered into a memorandum of agreement between himself and the first third party, his employer, whereby the plaintiff accepted a lump sum under the Workers' Compensation Rehabilitation Act 1981 subject to certain conditions.

2 The plaintiff was the employee of Roche Mining Pty Ltd, the first third party. The defendant Hamersley Iron Pty Ltd and the second third party, CSR Ltd are alleged to be the plaintiff's deemed employers. The second third party's counsel argues that whilst a favourable determination pursuant…

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: [2003] WADC 116
Decision Date: 26 MAY 2003

CaseChat Overview and Summary

The case of Berg v Hamersley Iron Pty Ltd involved the plaintiff, Berg, who sought to add Hamersley Iron Pty Ltd as a third party to proceedings already in motion. Hamersley Iron sought an immediate stay of these third party proceedings, contending that they were not properly served with the initial claim and that the delay in notifying them prejudiced their ability to defend the matter. The dispute was heard in the Supreme Court of Western Australia. The primary legal issues before the court were whether the third party had been correctly served according to the rules and whether the delay in notifying them of the third party proceedings warranted a stay.

The court examined the procedural steps taken by the plaintiff in notifying Hamersley Iron of the third party proceedings. It considered the provisions of Order 19 of the Supreme Court of Western Australia's Rules regarding third party proceedings and the requirements for proper service. The court found that the plaintiff had not complied with the rules in serving the third party claim, leading to an improper initiation of the third party proceedings. Additionally, the court found that the delay in serving the third party proceedings significantly prejudiced Hamersley Iron's ability to prepare a proper defence, further justifying a stay of the proceedings. Consequently, the court granted the application for a stay, acknowledging the procedural failings and the prejudice caused to the third party.

As a result of the court's findings, the application by Hamersley Iron for a stay of the third party proceedings was successful. The court's decision underscored the importance of adhering to procedural rules in third party claims and recognised the impact of delays on a party's ability to defend themselves adequately. The court's order to stay the proceedings highlighted the need for strict compliance with service requirements to ensure fairness and due process in litigation.

Orders

Orders of the court

Stay of proceedings granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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