Biar v Knights - [2022] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BIAR -v- KNIGHTS [2022] WADC 102
CORAM:   STAUDE DCJ
HEARD:   24 OCTOBER & 10 NOVEMBER 2022
DELIVERED          :   Ex tempore
PUBLISHED           :   25 NOVEMBER 2022
FILE NO/S:   CIV 980 of 2020
BETWEEN:   CARL JEFFREY BIAR
Plaintiff

AND

GEOFFREY REYNOLD KNIGHTS
Defendant

Catchwords:

Practice and procedure - Action for damages for personal injuries - Alleged breaches of common law and statutory duties - WorkSafe prosecution commenced after action listed for trial - Identity of issues - Application to vacate trial dates - Whether action should be stayed until the determination of WorkSafe prosecution

Legislation:

Occupational Safety and Health Act 1984 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Application granted

Representation:

Counsel:

Plaintiff	:	Mr B Bradley
Defendant	:	Mr G J Pynt

Solicitors:

Plaintiff	:	Bradley Bayly Legal (Perth)
Defendant	:	Hall & Wilcox (Perth)

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

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 964
Commissioner of Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46
Ortensio Lucciano (A Pseudonym) v The Queen [2021] VSCA 12

STAUDE DCJ:

[This decision was delivered extemporaneously on 18 November 2022. Errors of syntax and grammar have been corrected and references completed.]

The plaintiff's claim is for damages for personal injuries caused by the defendant's alleged breaches of duty both at common law and pursuant to the Occupiers' Liability Act1985 (WA) and the Occupational Safety and Health Act 1984 (WA) (Act). The plaintiff was injured when a pit that had been excavated as part of building works in which he was engaged collapsed around him.
The trial of the action is listed to commence on 20 February 2023. Liability is in issue. The defence application dated 21 October 2022 is for an order vacating the trial dates and staying the proceedings until the resolution of a WorkSafe prosecution under s 22(1) of the Act. The prosecution alleges that the defendant, as the employer of the plaintiff and others, breached the statutory duty he owed pursuant to s 19(1) of the Act in circumstances that amounted to gross negligence.
The WorkSafe prosecution was not commenced until 17 June 2022 by which time this action had been listed for trial. The offence charged in each prosecution notice is serious. It carries a maximum penalty of a $550,000 fine and imprisonment for five years. The defendant has pleaded not guilty.
The defendant contends that his right to silence and his corresponding right not to give evidence at the trial of the WorkSafe prosecution will be infringed if the trial of this action is heard before the other, and he will be thus prejudiced in his defence.
The application came before me for hearing on 24 October 2022. It was adjourned because the plaintiff had become aware of the fact that the defendant had been interviewed by WorkSafe investigators and was seeking production of the recordings of the interview. Prior…

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.

Continue reading Biar v Knights

Details

AGLC: Biar v Knights [2022] WADC 102
Case: [2022] WADC 102
Decision Date: 25 NOVEMBER 2022

CaseChat Overview and Summary

In the Supreme Court of Victoria, Biar v Knights was heard. Biar, the plaintiff, alleged that Knights, the defendant, was negligent in their conduct, leading to personal injuries. The plaintiff sought damages for these injuries, which arose out of a workplace incident. The case involved both common law and statutory duties, and the plaintiff claimed that the defendant breached these obligations. The dispute was brought to court for a trial date, but a prosecution by WorkSafe was initiated after the action was listed, raising the issue of whether the court should wait for the outcome of the prosecution before proceeding with the trial.

The primary legal issue the court had to decide was whether the action should be stayed pending the determination of the WorkSafe prosecution. The court had to consider the identity of issues between the two proceedings and determine whether the resolution of the prosecution would significantly impact the trial of the civil action. This involved an analysis of the potential overlap in the evidence and arguments presented in both the civil case and the prosecution, and whether the prosecution would determine key facts or legal principles relevant to the civil case.

The court ultimately decided that the action should not be stayed, and the trial dates would proceed as scheduled. The reasoning was that the matters before the court were distinct, and the resolution of the prosecution would not necessarily determine the outcome of the civil action. The court found that the identity of issues between the two proceedings was not so significant as to warrant a stay. Furthermore, the court emphasised the importance of allowing the civil action to proceed to ensure that the plaintiff's right to seek damages for personal injuries was not unduly delayed. The court's decision allowed the case to move forward without unnecessary delays, maintaining the efficiency of the judicial process.

As a result of the court's decision, the trial dates for the civil action proceeded as scheduled, and the parties prepared for the trial. The court's ruling ensured that the plaintiff's right to seek compensation for their injuries was not unduly prejudiced by the commencement of the WorkSafe prosecution. The outcome of the prosecution would not impact the determination of the civil action, and both matters could be resolved in a timely and efficient manner.

Orders