| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA 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 to s 93(E)(3) is not a pre-condition to issuing a common law claim, given the medical reports the second third party submits the plaintiffs chance of securing a degree of disability not less than 30 percent is extremely remote. Hence the second third party counsel submits that if the plaintiff's claim against Hamersley is bound to fail, then so Hamersley's claim against CSR is bound to fail. Thus CSR should not be expected to expend funds on litigating the action nor should the third party proceedings continue, as it would be a waste of court resources. Third party's counsel argues that the proceedings should remain stayed until the plaintiff obtains a determination from the Workers' Compensation Review Directorate. 3 The defendant's counsel argues that the defendant's claim against the second third party is firstly, for an indemnity against any liability that the defendant has to the plaintiff pursuant to an indemnity clause contained in a contract between the defendant and second third party and, secondly a contribution to any costs or damages the defendants is ordered to pay the plaintiff under the Law Reform (Contributory Negligence in Tortfeasors Contribution) Act 1947. The defendant's counsel says that the primary claim against the second third party is for an indemnity pursuant to the contractual clause. This contractual indemnity not only covers the defendant's liability to the plaintiff but also covers the defendant's costs in relation to the claim by the plaintiff. These costs also include the costs of pursuing the third party claim. 4 On the evidence before me the plaintiff has been determined as having a 10 percent disability in his lower back. The likelihood of an award of damages being made against the defendant is remote.
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5 If the plaintiff's action against the defendant is dismissed then the defendant's claim against CSR becomes one for a money claim, being the costs owing on the action pursuant to the contractual indemnity. That action is far less complex than the present action.
6 There is the possibility that the plaintiff will, on receipt of the necessary medical evidence, be able to obtain a determination greater than 16 percent. In that case there would be merit in the third party proceedings continuing. 7 However, in the mean time there is no merit nor any justification in terms of costs or resources to warrant the third party proceeding continuing. Accordingly I made orders that the proceedings between the defendant and the second third party be stayed pending further order and that there be liberty to apply. I will hear counsel as to costs.
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