Brinkley v P and O Trans Australia WA Pty Ltd - [2009] WADC 16

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BRINKLEY -v- P & O TRANS AUSTRALIA WA PTY LTD & ANOR [2009] WADC 16

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 22 JANUARY 2009

DELIVERED : 9 FEBRUARY 2009

FILE NO/S: CIV 594 of 2008

BETWEEN: SIMON BRINKLEY
Plaintiff
AND
P & O TRANS AUSTRALIA WA PTY LTD (ACN 087 193 342)
First Defendant
WA FORK TRUCK DISTRIBUTORS PTY LTD (ACN 009 009 861)
Second Defendant
FUSION RECRUITMENT GROUP PTY LTD (ACN 113 799 910)
Third Party

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application to strike out third party proceedings - Rules of the Supreme Court of Western Australia O 12 r 6(2) and/or O 19 r 6 - Workers Compensation and Injury Management Act 1981s 93L, s 93K(8), s 93K(4)

Legislation:

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947
Rules of the Supreme Court of Western Australia 1971
Workers' Compensation and Injury Management Act 1981

Result:

Application successful

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant              :     No appearance
Second Defendant         :     Ms E McLennan
Third Party  :     Mr J P Wilson

Solicitors:

Plaintiff:     Not applicable
First Defendant              :     Not applicable
Second Defendant         :     Jarman McKenna
Third Party  :     Williams Hancock Lawyers

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

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff's claim is for damages for personal injury sustained in the course of his employment by the third party. He alleges that he was injured as a result of a fire in the engine compartment of a forklift he was operating which had been provided to the first defendant by the second defendant.
By a third party notice the second defendant claims an indemnity, alternatively contribution from the third party to any damages payable to the plaintiff on the grounds that the accident was caused or contributed to by the third party's negligence.
On 17 November 2008 the third party filed a conditional appearance. On 5 December 2008, by the application now before me, it sought to have the third party notice struck out. The application is made under O 12 r 6(2) alternatively O 19 r 6 of the Rules of the Supreme Court of Western Australia 1971.
Order 12 r 6 provides that a party may file a conditional appearance but that unless within 14 days of so appearing that party brings a relevant application the appearance is rendered unconditional. Prior to the date the application was filed the appearance had become unconditional. The third party seeks to have time extended for both bringing the application and for the appearance to remain conditional. I am familiar with authority that expresses that any time period or limit expressed in the rules may be extended. Whatever the meaning of the application that relates to maintaining the status of the appearance filed, in my opinion the result sought by the third party would require more than an extension of time. To enable it to have recourse to r 6 it would be necessary for the Court to set aside the impact that time has had on the appearance.
Order 19 r 6 provides that at any time the Court may set aside a third party notice. The third party contends that the second defendant's notice discloses no reasonable cause of action; is scandalous, frivolous or vexatious and may prejudice embarrass and delay a fair trial of the action and that it is otherwise an abuse of process of the court. The standard by which the application should be judged is whether it is clear that the claim can not succeed. The onus is on the applicant.
It is common ground that there is no basis for the Court to order that the third party indemnify the second defendant. The claim for contribution draws on s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947. It provides that where damage is suffered by any person as the result of a tort, any tortfeasor found liable may recover contribution from any other tortfeasor who is or would, if sued be liable for the same damage.
The applicant draws upon three grounds for the proposition that no contribution could be recovered from it under s 7(1)(c) because it could not be found liable for the plaintiff's loss. The first is that s 93K(4) of the Workers' Compensation and Injury Management Act 1981 would preclude a plaintiff from recovering damages from his employer where he had not established his position within the statutory framework for a worker to do so. The second is that the terms of a deed between the plaintiff and the third party would operate so as to bar any action by the plaintiff against it. The third is that such a claim would be prohibited by s 93K(8) of the Workers' Compensation and Injury Management Act 1981.
The legislative provisions are as follows:
"93K
…
(4)Damages in respect of an injury can only be awarded if –
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages;
(b)the Director registers the election in accordance with the regulations;
(c)court proceedings seeking damages are commenced within –
(i)the period of 30 days after the Director gives the worker written notice that the Director has registered the election; or
(ii)any further time provided for in the regulations to allow for things to be done before court proceedings are commenced;
and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
93L
(1)…
(2)A worker can only elect under section 93K(4) to retain the right to seek damages if –
(a)the worker and the employer agree –
(i)that the worker's degree of permanent whole of person impairment is at least 15%; and
(ii)as to whether or not the worker's degree of permanent whole of person impairment is at least 25%;
or
(b)the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.
93K
…
(8)If-
(a) …; or
(b)damages in respect of the injury have been awarded in accordance with subsection (5),
the employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (the 'Contribution Act') in respect of damages awarded against another person in relation to the injury."
Any impact of s 93K(5) would not be significant for the purposes of the application.
In his affidavit of 5 December 2008, John-Paul Wilson deposes to the relevant relationships between the parties. At par 8 and following he deposes to the third party's acceptance of the plaintiff's workers' compensation claim; that the plaintiff has not obtained the agreement of the third party; that he has suffered a degree of permanent whole person impairment of at least 15 per cent; that he has not registered any such assessment of such impairment; and that no election has been registered.
At par 13 he deposes to the fact that the plaintiff has entered into a deed with the third party the terms of which release the third party from any liability arising from the accident and bar any action by the plaintiff or any person or body claiming through or on his behalf against the third party.
The applicant submitted that the legislative provisions and the evidence support the proposition that the condition expressed in s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act could not be satisfied.
The principal submission of the second defendant drew upon the impact that the third party's success in the application would have in the context of the Workers' Compensation Act. It referred to s 93 which both permits and limits recovery of statutory entitlements paid in response to a worker’s compensation claim. It is in part as follows:
"(1)Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof but neither the employer nor any person for whose negligence the employer is legally responsible was negligent –
(a)…;
(b)the employer is entitled to be indemnified by the person whose negligence caused the injury to the worker (in this section called 'the defendant') to the full extent of the employer's liability to pay compensation under this Act, whether or not the defendant has discharged his liability to pay damages to the worker by judgment or by settlement or otherwise.
(2)If there were –
(a)negligence by the employer or by some person for whose negligence the employer is legally responsible which caused or contributed to the worker's injury, the extent of the indemnity of the employer by the defendant is reduced by the proportion that the employer's negligence and that of any person for whose negligence the employer is responsible bears to 100%; or
…"
It also referred to s 92(b) by which provision is made for apportionment in particular circumstances. It is as follows:
"Where in respect of an injury an action is brought by a worker for damages independently of this Act against his employer or against some other person (referred to in this section as 'the defendant') or against both of them –
(a)…;
(b)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer only or against the employer and the defendant, there shall be deducted from the amount of the judgment and be paid to the employer a sum representing the amount (after apportionment in respect of any contributory negligence on behalf of the worker) actually recoverable by the worker by way of weekly or lump sum compensation, medical and other expenses paid pursuant to this Act, but where liability is apportioned between the employer and the defendant the defendant's liability to pay to the worker shall be reduced accordingly;"
The second defendant raised the prospect that if the third party proceedings stood then the court would have the opportunity to provide a limited scope for recovery by the employer or order apportionment. It submitted that those provisions clearly contemplated the prospect of a court making an order that would have an adverse impact on the employer of an injured worker. Further that in order to permit the second defendant to obtain the benefit of such an impact there should be some mechanism by which it can achieve that result. If not the third party notice, then it proposed an amended third party notice.
It is no particular significance but the third party was also able to draw upon the prospect that the legislature intended to confer a benefit in circumstances where judgment was obtained against other than the worker's employer. It referred to s 92(c) which is as follows:
"If the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the defendant only or is settled by the acceptance of money paid into court by the defendant, the payments and expenses referred to in paragraph (b) shall be a first charge on the judgment or the amount of money paid into court and the defendant shall be bound to pay the amount of the compensation, and medical and other expenses to the employer and the judgment shall be pro tanto discharged by such payment, or the amount due under the charge shall be paid out of court to the employer or his authorised agent, as the case may be;"
The third party's response to the second defendant's contention that it was appropriate for the court to permit some form of third party proceedings against the applicant was that whatever form the notice took, it must draw upon the features of the plaintiff's claim and the legislative provisions that I have canvassed.
As for the particular prospect of an amended notice, the second defendant had contended it could bring a claim for declaratory relief under s 92(b). The third party submitted that any such notice must have a jurisdictional basis.
Having reflected upon the submissions of the parties, in my opinion the third party notice presently bought by the second defendant has no jurisdictional basis. The second defendant presented no amendment at the hearing and the prospect of amendment is nothing more than that. It is appropriate that the application be determined on what is before the court on the day.
I am satisfied that the plaintiff could not establish himself within the statutory framework so as to enable the second defendant to put forward for determination the issue presented by the third party notice. I am satisfied that any action commenced by the plaintiff would be defeated by the bar expressed in the deed. I am satisfied that s 93K(8) confers immunity upon the third party in the very context it is placed by the third party notice.
It is clear that the claim brought by the second defendant under s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act could not succeed.