Bott v GIO Workers Compensation - [2007] NSWSC 758

CITATION: Bott v GIO Workers Compensation [2007] NSWSC 758
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 July 2007

JUDGMENT DATE :
13 July 2007

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: 1. The statement of claim be dismissed; 2. The plaintiff’s amended notice of motion be dismissed; 3. The plaintiff pay the costs of the defendant, and the costs of WorkCover.

CATCHWORDS: PLEADING – defendant’s notice of motion for summary judgment – plaintiff’s notice of motion for leave to amend statement of claim – application to add WorkCover Authority as second defendant – claim for damages for personal injury – claim against employer determined in District Court – verdict for employer – claim against employer’s insurer – frivolous and vexatious proceedings – no reasonable cause of action pleaded – abuse of process – attempt to re-litigate unsuccessful proceedings – proposed claim against WorkCover – no reasonable cause of action disclosed – leave to amend statement of claim refused

LEGISLATION CITED: Civil Liability Act 2002
Limitation Act 1969
Uniform Civil Procedure Rules 2005

CASES CITED: Blair v Curran [1939] HCA 23; 62 CLR 464
General Steel Industries Inc v Commissioner for Railways (NSW) [1954] HCA 69; 112 CLR 125

PARTIES: David Charles Bott (Plaintiff)
GIO Workers Compensation (Defendant)

FILE NUMBER(S): SC 20484 of 2006

COUNSEL: in person (Plaintiff)
D J Hooke (Defendant)
P R Sternberg (WorkCover Authority NSW)

SOLICITORS: N/A (Plaintiff)
Hicksons (Defendant)
I V Knight, Crown Solicitor (WorkCover Authority NSW)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

Simpson J

13 July 2007

20484/06 David Charles Bott v GIO Workers Compensation

JUDGMENT:
(i) Defendant’s notice of motion for summary judgment;
(ii) Plaintiff’s notice of motion for amendment and various additional orders

1 HER HONOUR: The substantive proceedings were commenced by statement of claim filed by the plaintiff on 27 November 2006. He names “GIO Workers Compensation” as the only defendant. The whole of the pleadings contained therein are as follows:

“1. It is alleged that the between 19 July 2000, and 27 November 2003, GIO Workers Compensation, the plaintiff’s insurer, breached its duty of care to the injured worker.

2. It is alleged that the insurer, once the employer had dismissed the plaintiff, and GIO, the insurer accepted liability, they owed the plaintiff a duty of care.

3. It is alleged that the insurer, through it’s actions, did not fulfil this duty of care.

4. It is alleged that the insurer hindered medical diagnosis and treatment, by denying scans and treatments, for excessive periods, causing and/or exacerbating the plaintiff’s injuries and medical conditions.

2 On 11 May 2007 the defendant filed a notice of motion seeking, in the alternative, orders that the proceedings be struck out in whole or…

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 Bott v GIO Workers Compensation

Details

AGLC: Bott v GIO Workers Compensation [2007] NSWSC 758
Case: [2007] NSWSC 758
Decision Date: 13 July 2007

CaseChat Overview and Summary

The plaintiff, Bott, sought to amend his statement of claim to include the WorkCover Authority as a second defendant in his action for damages for personal injury. Bott had previously brought a claim against his employer, which was determined in the District Court, resulting in a verdict for the employer. Now, Bott sought to proceed against the employer's insurer. The insurer applied for summary judgment, contending that Bott's claim was frivolous and vexatious, lacked reasonable cause of action, and represented an abuse of process by attempting to re-litigate the unsuccessful proceedings against the employer. The court had to determine whether Bott should be granted leave to amend his statement of claim to include the WorkCover Authority as a second defendant.

The court considered the legal principles surrounding leave to amend pleadings, the criteria for granting summary judgment, and the principles of abuse of process. The court evaluated whether the proposed claim against the WorkCover Authority disclosed a reasonable cause of action. The court also assessed whether Bott's attempt to amend his statement of claim amounted to an abuse of the court's process. The insurer argued that Bott's proposed claim against the WorkCover Authority was without merit and served no purpose other than to re-litigate the previous proceedings against the employer.

The court concluded that Bott's proposed amendment to add the WorkCover Authority as a second defendant did not disclose a reasonable cause of action. The court found that Bott's attempt to re-litigate the unsuccessful proceedings against his employer amounted to an abuse of process. The court held that Bott's claim was frivolous and vexatious, lacking any reasonable prospect of success. Consequently, the court refused Bott's application for leave to amend his statement of claim and granted the insurer's application for summary judgment.

The court ordered that Bott's claim against the insurer be dismissed with costs. The court further ordered that Bott pay the insurer's costs of the proceedings on an indemnity basis. The court emphasized that Bott's attempt to amend his statement of claim to include the WorkCover Authority as a second defendant was an abuse of the court's process and was without merit. The court's decision underscored the importance of ensuring that claims brought before the court are not frivolous or vexatious and that the court's resources are not wasted on proceedings that have no reasonable prospect of success.

Orders