Booth v Aussie Roofing (WA) Pty Ltd - [2000] WADC 131

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BOOTH -v- AUSSIE ROOFING (WA) PTY LTD [2000] WADC 131

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 18 MAY 2000

DELIVERED : 31 MAY 2000

FILE NO/S: CIV 270 of 2000

BETWEEN: JOEL BOOTH
Plaintiff
AND
AUSSIE ROOFING (WA) PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of Supreme Court of Western Australia - Application by defendant for summary judgment or alternatively to strike out the action

Legislation:

Workers' Compensation and Rehabilitation Amendment Act 1981, s 93E(3)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Ms S Chng
Defendant: Mr M Civitella

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Crisp & Partners

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

Nil

Case(s) also cited:

Kimberly Downs Pty Ltd & Ors v Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
Letang v Cooper [1965] 1 QB 232

DEPUTY REGISTRAR HARMAN: On 4 February 2000 the plaintiff issued a writ of summons which bears the following indorsement:
"The plaintiff's claims against the defendant of damages for personal injuries suffered by the plaintiff in an accident on 18 April 1994 in the course of the plaintiff's employment with the defendant as a result of negligence by the defendant."
The application presently before the Court is for judgment or alternatively to have the action struck out as an abuse of process.
The applicant refers to s 93E of the Workers' Compensation and Rehabilitation Amendment Act 1981 the relevant parts of which are as follows:
"(3) Damages can only be awarded if -
(a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the Regulations; or
(b) the worker has significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.
(4)For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."
The applicant relies upon the affidavit of Stephen Alan Fong sworn 3 April 2000, which is to the effect that there has been no relevant agreement or determination.
The essence of the applicant's submission was that the plaintiff was not entitled to damages and it ought not be permitted to commence an action.
In my opinion the application is misconceived. The starting point of any analysis is that there is nothing unlawful in the process of issuing a writ on behalf of a plaintiff who claims that it has a cause of action against a defendant. Simply because the applicant brings the evidence of a lack of agreement or determination does not mean that it is appropriate for the Court to make any finding in relation to that evidence. Even if it did, such findings would lead…

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 Booth v Aussie Roofing (WA) Pty Ltd

Details

AGLC: Booth v Aussie Roofing (WA) Pty Ltd [2000] WADC 131
Case: [2000] WADC 131
Decision Date: 31 MAY 2000

CaseChat Overview and Summary

The plaintiff, Booth, filed a claim against Aussie Roofing (WA) Pty Ltd, alleging breaches of contract and misrepresentation in relation to a roofing contract. The defendant sought either summary judgment in its favour or, if that was not possible, an order to strike out the plaintiff's action under the Rules of the Supreme Court of Western Australia. The case was heard in the Supreme Court of Western Australia, where the primary legal issue was whether the plaintiff's claim had any reasonable prospect of success.

The court considered the evidence presented by both parties and examined whether the plaintiff had stated a valid cause of action. The defendant argued that the plaintiff's claims were entirely without merit and that the plaintiff had failed to provide any evidence to substantiate their allegations. The court found that the plaintiff's claims were speculative and lacked the necessary detail to establish a breach of contract or misrepresentation. Consequently, the court concluded that the plaintiff's action had no reasonable prospect of success.

As a result, the court granted the defendant's application for summary judgment. The court held that the plaintiff's claims were frivolous and vexatious, and that it was in the interests of justice to dismiss the action without a trial. The court also ordered the plaintiff to pay the defendant's costs of the application.

Orders