Breed v Alcoa of Australia Ltd t/as Alcoa World Alumina Australia [No 3] - [2012] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BREED -v- ALCOA OF AUSTRALIA LTD t/as ALCOA WORLD ALUMINA AUSTRALIA [No 3] [2012] WADC 4

CORAM: CURTHOYS DCJ

HEARD: 19 DECEMBER 2011

DELIVERED : 23 JANUARY 2012

FILE NO/S: CIV 1004 of 2003

BETWEEN: ANNA MARGARET BREED
Plaintiff
AND
ALCOA OF AUSTRALIA LTD t/as ALCOA WORLD ALUMINA AUSTRALIA (ACN 004 879 298)
Defendant

Catchwords:

Stay application

Legislation:

Supreme Court Rules 1971, O 1 r 4A

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff: Mr B Nugewela
Defendant: Mr G Donaldson SC

Solicitors:

Plaintiff: CLP Legal
Defendant: Harman Legal Pty Ltd

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

Nil

CURTHOYS DCJ: The plaintiff is the widow of Peter Breed who died on 19 May 2002 allegedly as a consequence of developing cancer while employed by the defendant at its refinery at Kwinana from 17 July 1978 until 19 May 2002.
On 6 May 2003 the plaintiff issued a writ in this court. A statement of claim was filed on 21 June 2004. A defence was filed on 6 July 2004. On 21 July 2004 the plaintiff's solicitor certified that it had provided discovery and inspection on 20 December 2004. The defendant's solicitor certified that it had provided discovery and inspection. There were various interlocutory matters thereafter related to amendments to the statement of claim and a request for particulars.
When the writ was issued in 2003 the potential scope of the claim extended from 1978 – a period of 25 years. It was imperative that the plaintiff proceed with expedition given the difficulties that both parties were likely to face in presenting their respective cases.
Workers' compensation proceedings by the plaintiff were commenced on 15 June 2008 SD 796/08 and on 14 January 2010 SD 1449/09. Those proceedings were commenced 5 years after the issue of the writ, 6 years after Mr Breed's death and 30 years from when he commenced employment.
On 16 February 2011 the defendant entered this matter for trial with a pre-trial conference listed for 27 April 2011. The plaintiff did not bring an application to countermand the entry for trial.
At the pre-trial conference it was ordered that:
(a)the pre-trial conference be adjourned sine die with liberty to apply for a directions hearing upon seven days notice; and
(b)any application on the part of the plaintiff for an order staying this action pending the determination the workers' compensation proceedings be filed and served within 28 days.
On 24 May, the plaintiff filed an application that the action be stayed. The application was supported by an affidavit of Kevin Wong. He deposed that a directions hearing was held at WorkCover on 19 May 2011 and that it was expected that the substantive hearing would take two weeks and be heard in December 2011.
On 21 June 2011, Mr Harman, the solicitor for the defendant, filed a responsive affidavit outlining the history of the matter and noting the plaintiff's property ownership.
The application for a stay was heard by a registrar on 1 July 2011. Judgment was delivered on 12 October 2011 refusing the stay essentially on the basis of a finding that the tests for causation were different under the Workers' Compensation and Injury Management Act 1981 ('the Act') and at common law.
On 20 October 2011 the plaintiff lodged an appeal against that decision. Prior to the hearing of the appeal a further affidavit was filed by Mr Harman relating to the history of the proceedings.
The plaintiff's submissions in support of the appeal submitted that the learned registrar ought to have found that the common law test and statutory test for causation are the same.
At the hearing of the appeal, the respondent stated that the real issue in the appeal was not the appropriate test of causation. This is a hearing de novo and I have made my decision on matters that are unrelated to causation. For the purposes of reaching my decision, I have proceeded on the basis that the causation test at common law and under the statute is the same.
A critical issue in this matter that the writ dates back to 2003 and the facts relating to the cause of action potentially start in 1978. Such a long delay inevitably leads to evidentiary and other problems in a trial. Little would be gained by an exhaustive analysis of why it has taken so long for the matter to reach this point. We are where we are, and I approach it on the basis that I should make an order that leads to the resolution of the issues between the parties in accordance with O 1 r 4A of the Supreme Court Rules 1971. For that reason, I do not intend to endeavour to attribute fault to any party for the fact that eight years after the issue of the writ this matter has still not been heard.
The matters that were raised by the plaintiff as a basis for a stay being granted were essentially that the workers' compensation proceedings were closer to a resolution, the risk of conflicting decisions and prejudice to the plaintiff.
The workers' compensation proceedings were instituted in 2008. The evidence does not lead me to conclude that the workers' compensation proceedings are close to resolution. The hopes of Mr Wong that the case would be heard in December 2011 were not met.
The risk of conflicting decisions between the workers' compensation proceedings and the District Court will be met by whichever first renders a decision upon which issue estoppel might arise. The risk of conflict is not of itself a ground to delay the District Court or the workers' compensation proceedings.
The advantage to the plaintiff of the proceeding under the Act is that there is a reverse onus of proof under s 44 of the Act which deems the workers' injury to be due to the nature of employment unless the employer proves to the contrary.
Mr Wong states in his affidavit that 'a determination in the District Court based on the plaintiff carrying the onus would thwart the intention of s 44 of the Workers' Compensation and Injury Management Act 1981'. I do not accept that assertion. The Act does not prohibit common law proceedings. Plainly, the system of law allows both proceedings to run parallel. It is a common incident of industrial injury claims.
I do not accept that prejudice to the plaintiff arises from the fact that the two proceedings are running side by side. That is simply an incident of the fact that the plaintiff chose to institute proceedings both in the District Court and under the Act. Nothing obliged the plaintiff to institute these proceedings, nor to continue both of them.
The plaintiff has not established any grounds for a stay.
The procedural history of these matters gives me no confidence that there would be a resolution of the overall matter in the spirit of O 1 r 4A of the Supreme Court Rules if I granted a stay of these proceedings. For whatever reason, the eight years since the issue of the writ have not brought this matter to a resolution. The workers' compensation proceedings appear to have suffered from the same malaise.
If the plaintiff wishes the workers' compensation proceedings to be heard first, then she should do everything in her power to avail herself of the procedural steps to bring the workers' compensation proceedings to a swift resolution. If the defendant wishes the District Court proceedings to be heard first then it should do everything in its power to bring the proceedings to a swift resolution.
I accept that there is a degree of competiveness in taking this approach, however, given the long history of these matters, it seems to me that this is the only way in which the overall matter will be resolved.
It follows from this that I am not persuaded that there is any reason in principle why the proceedings in the District Court should be stayed. I am not persuaded that there is any practical reason why the proceedings should be stayed. In those circumstances, I dismiss the appeal and order that the plaintiff pay the defendant's costs of the appeal.