Danielsen v OneSteel Ltd - [2008] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
DANIELSEN v ONESTEEL LTD
[2008] SADC 56
Reasons of His Honour Judge Soulio
12 May 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
Application to amend statement of claim. Application to strike out statement of claim and Action. District Court Rule 53.01. Whether the statement of claim discloses a cause of action. Breach of statutory duty. Vicarious liability.
Appeal from a decision of a Master is an appeal by way of re-hearing.
District Court Rules 17 and 292; District Court Act (1971) SA s43, referred to.
Bennett v WMC (Olympic Dam Corporation) P/L and Akula P/L (in liquidation) and CGU Insurance Ltd and Ors [2008] SADC 42 delivered 18 April 2008, considered.

DANIELSEN v ONESTEEL LTD
[2008] SADC 56

This is an appeal from a decision of a Master delivered 29 February 2008 refusing the plaintiff’s oral application for leave to amend his statement of claim, and granting the defendant’s application to strike out the pleadings and dismiss the action.
The learned Master also formally dismissed the plaintiff’s separate application pursuant to DCR 15(4) seeking to have the defendant’s application heard by a Judge rather than a Master.
Nature of the Appeal
The appeal is pursuant to s43 of the District Court Act 1991 which relevantly provides:
1.A party to an action may, in accordance with the rules of the Appellate Court, appeal against any judgment given in the action.
2.The appeal lies –
(a)in the case of a judgment given by a Master or the Court constituted of a Master – to the Court constituted of a Judge.
The District Court Rules 2006 which govern this appeal provide that there is an appeal as of right from a judgment of a Master to the Court constituted of a Judge (see DCR17). DCR 292 provides:
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these rules, the Court may—
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)     amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)     make orders for the costs of the appeal.
As Judge Simpson observed in Bennett v WMC (Olympic Dam Corporation) P/L & Akula P/L (in Liquidation) & CGU Insurance Ltd & Ors[1]:
There is no rule which allows the Judge to exercise his own discretion without regard to the manner in which it was exercised by the Master. While the appeal is in the nature of a rehearing, it is nevertheless relevant to bear in mind the principles which guide an appeal from a discretionary decision on an interlocutory application, i.e., there is a strong presumption in favour of the correctness of the decision appealed from and the decision should be affirmed unless the court is satisfied that the decision is a product of the decision maker acting on a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. It is not enough to find that if I had been in the position of the learned Master, I would have taken a different course or exercised the discretion differently. (Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 at 627: House v The King (1936) 55 CLR 499 at 504-505; Mullett and another v Gabriel and another (1989) 52 SASR 330 at 333; Thomas v Thomas [2000] SASC 408)
[1] [2008] SADC 42 judgment delivered 18 April 2008
History
The plaintiff was formerly employed by OneSteel Trading Pty Ltd. OneSteel Trading Pty Ltd was the proprietor of the registered business name OneSteel Metaland. OneSteel Manufacturing Pty Ltd was a company delegated with the authority to manage workers compensation claims, including that of the plaintiff, on behalf of OneSteel Trading Pty Ltd. OneSteel Limited, the defendant is the ultimate holding company of OneSteel Trading Pty Ltd and OneSteel Manufacturing Pty Ltd.
In the course of his employment with Onesteel Pty Ltd he suffered injuries. He brought a claim pursuant to the Workers Rehabilitation and Compensation Act 1986 (‘the Act’) in relation to injury to his right shoulder, and in relation to injury to his back.
The Workers Compensation Tribunal determined that his employer’s rejection of his claim in relation to a work injury to his right shoulder should be upheld but made a determination that he was entitled to weekly payments of income maintenance for a closed period relating to a work injury to his lower back, and that he was entitled to recover certain medical expenses[2]. He appealed from that determination, and that appeal was dismissed by the Full Bench of the Tribunal[3].
[2] Danielsen v OneSteel Manufacturing Pty Ltd [2003] SAWCT 116
[3] Danielsen v OneSteel Manufacturing Pty Ltd [2004] SAWCT 58
The plaintiff was unable to bring a claim against his employer for damages, given the provisions of s54(1) of the Act, which relevantly provides that no liability attaches to an employer in respect of a liability arising from employment by that employer except a liability under the Act[4].
[4] See for example Errington v Target Australia Pty Ltd (1995) 65 SASR 378 where the Full Court held there was no alternative claim on the basis of occupier’s liability, given the legislative policy to remove any right of action against the employer relating to work place injuries, except that provided within the framework of the Act.
The plaintiff also applied to the Industrial Relations Court for reinstatement or other remedy on the basis that he had been unfairly dismissed from his employment. That action was settled by agreement on 9 July 2002.
Release and Discharge
In consideration of a payment made to him the plaintiff agreed to settled “in full satisfaction and discharge all claims and complaints whatever ... against the employer or the employer’s servants or agents in any way relating to or arising out of my employment with the employer or its termination.” The agreement provided that the discharge “may be pleaded by the employer as an absolute defence to any claims”.
The plaintiff undertook to discontinue the Industrial Relations Court claims, and claims commenced under the Employer Relations Act 1994, the Workplace Relations Act 1999 (Commonwealth) and any other Acts, and undertook not to “commence or prosecute any proceedings of any nature whatever pursuant to the Acts or at common law in respect of any claims.”
The plaintiff subsequently sought to set aside that agreement. That application was dismissed by an Industrial Magistrate. A Judge of the Industrial Relations court dismissed the plaintiff’s appeal from that decision.
Subsequent Litigation
Thereafter the plaintiff brought a series of actions against related companies.
The action against the present defendant is on the basis of an allegation by the plaintiff that the defendant is “bound by the obligatory duties as stated in the Commonwealth Company and Corporations Act2001, s180 and s1317E for negligence and breach of duty, the Occupational Health and SafetyAct and the Wrongs Act and is liable for the wrongs and torts of their subsidiaries which includes my employer OneSteel Pty Ltd.”
The plaintiff had previously instituted proceedings being action No 154 of 2005, asserting that his employer at the relevant time had been Onesteel Trading Pty Ltd trading as Onesteel Metaland. He sought to join Onesteel Manufacturing and Onesteel Metaland.
In December 2005 a master of this court struck the proceedings out on the basis that they disclosed no cause of action. An appeal against that decision was heard by Judge Tilmouth in this court and dismissed[5].
[5] Danielsen v Onesteel Manufacturing Pty Ltd (2006) SADC 126 judgment delivered 13 October 2006.
The Decision
The Master conducted a careful review of the history of the plaintiff’s litigation against the defendant and related companies.
The Master then observed:
It is clear from the above information that Mr Danielson has purported to pursue every possible avenue of claim against his former employer including common law and compensation claims and associated claims. He was unsuccessful. He then sought to pursue an action against another Onesteel company on the same facts. That was unsuccessful
He now seeks to pursue the same common law claim against another Onesteel company, this time the parent company on the basis of vicarious liability. Such claims cannot be pursued at common law for work related injuries against another entity who comes within s54(1) & (8).
The Master then gave consideration to the proposed amended statement of claim filed on 20 September 2007.
He came to the view that each of the five bases alleged by the plaintiff to give rise to a cause of action against the defendant, relied on the proposition that the defendant was vicariously liable for the actions of the plaintiff’s former employer.
Upon the hearing before the Master the plaintiff sought to rely on the decisions in TransAdelaide v Evans[6] which involved a police officer injured on premises occupied by TransAdelaide. TransAdelaide unsuccessfully sought to argue that as the plaintiff was employed by “the Crown” and that TransAdelaide was in effect “the Crown”, s54(1) meant that no liability could attach to TransAdelaide. The court there held that TransAdelaide was not the employer for the purposes of the Act. A similar conclusion was reached in Sutherland v Federal Airports Corporation[7].
[6] [2005] SASC 175
[7] (1998) 72 SASR 356
The Master distinguished those decisions, correctly in my view.
The Basis of the Present Appeal
The plaintiff alleges generally that there was a denial of natural justice, and that the Master failed to consider the documents lodged by the plaintiff and all of the facts of the case. It is also alleged that the Master failed to give proper consideration to the Corporations Law and the Acts Interpretation Act and failed to properly consider the fifth cause of action pleaded by the plaintiff in the proposed amended statement of claim.
A Preliminary Issue
A further matter was raised by the plaintiff on the appeal, namely that the Master heard an interlocutory injunction, despite the plaintiff’s request for the matter to be transferred to a Judge for hearing. I will deal with that point first.
The Master initially dealt with that issue in a separate decision delivered on 20 August 2007.
The defendant’s application of 28 May 2007 sought two orders, namely:
1That the summons and statement of claim be struck out as disclosing no cause of action or, in the alternative as being an abuse of process;
2That the plaintiff be prohibited from instituting other proceedings against the defendant or any of the corporate entities within the defendant’s corporate group.
The plaintiff brought an application arguing that Rule 15(4) provides that a party may seek a hearing before a Judge rather than a Master, where the application involves an interlocutory injunction or proceedings for the confirmation of an interlocutory injunction.
The Master made the observation that the second order sought by the defendant, could only be brought pursuant to s39 of the Supreme Court Act, and only in the Supreme Court. I agree. In any event the defendant abandoned its pursuit of that order, at least until the order sought in paragraph one, striking out the summons and statement of claim as disclosing no cause of action, or in the alternative as an abuse of process, was determined.
On that basis, I do not consider that the Master was in error in proceeding to hear the defendant’s application for a strike out order, given that there was no longer on foot an application for any order which might be regarded as having been in the nature of an injunction, whether interlocutory or otherwise.
The Main Issue
On the hearing of the appeal before me the appellant sought to rely on the decision of the Full Court in Golden Plains Fodder Australia Pty Ltd v Millard[8]. That case involved an appeal from a decision of a Judge of this court who was called upon to determine, as a preliminary point, which of two entities was in fact the employer of the plaintiff.
[8] [2007] SASC 391
In the present case there is no doubt as to the identity of the plaintiff’s employer, nor any doubt that the employer was a wholly owned subsidiary of the current defendant. Mr Wallwork, for the defendant, urged upon me that that decision was distinguishable. I agree.
The plaintiff’s approach in the present action reveals a degree of misguided ingenuity. As the Master observed:
When Mr Danielson was confronted with the realisation that s54(8) WRCA worked against him he argued that the actions of the defendant’s employees give rise to a different cause of action, which is not work related and therefore bound by s54.
The argument was that, if the defendant’s direct employees, by giving directions which were inconsistent with its duty of care, then the plaintiff’s injuries could be pursued as a common law claim even though he suffered an injury at work on premises controlled by the employer and not the defendant. This required him to assert contrary to the previous action and the previous pleadings in this case that the employees who gave these directions were employed by the defendant and not by Onesteel Trading Pty Ltd.
In going about the process of pleading the claim the plaintiff has simply altered the factual contentions in the hope that that will be sufficient. For example, initially he asserted that various persons were employed by Onesteel Trading Pty Ltd and now, without any particulars, asserts that the defendant was responsible for the actions of employees of subsidiaries of the defendant. This would make a mockery of s54 WRCA.
Mr Danielson argues this without recourse to ss(8), namely, that the employer includes anyone who might be vicariously liable for the acts of the employer. Further, as he appreciated, the original statement of claim contained a number of factual flaws. He went on to assert that the various named individuals were not in fact employed by Onesteel Trading but employed by the defendant. This is simply and demonstrably not true.
This was in complete contradiction of the earlier pleading and assertions made in the other action and the other proceedings. He does this to get around the inability to particularise the relationship that might give rise to potential claims. I refer to the affidavit evidence of Ms Kerrigan which shows that the plaintiff’s assertions are false.
As a result and for reasons which were expressed by Master Norman in the previous action and Judge Tilmouth on appeal in that action, this new claim against a different but related company to the employer cannot be enjoined in the action for damages arising out of the injuries allegedly suffered by Mr Danielson in the course of his employment with Onesteel Trading Pty Ltd.
The plaintiff’s claim is for damages for work related injuries. He has no claim against his employer or other related companies of the parent corporation to sue for damages at common law pursuant to s54 of the Workers Rehabilitation & Compensation Act.
I have looked at this matter from various agency related perspectives to ascertain if some claim is arguable. I have come to the conclusion that there is none. I am mindful of the court’s approach to dismissing proceedings prior to trial – see General Steel Industries Inc. v Commissioner for Railways (New South Wales) (1964) 112 CLR 125.
Onus upon the Plaintiff
In his outline of argument and upon the hearing of the appeal, the plaintiff raised a further issue and submitted that:
Master Rice in stating I had to prove my argument to a very high degree and possibly even absolute (transcript page 58 lines 37 & 38) is erroneous in law, in expecting me to prove my argument to such a high degree without allowing me to subpoena evidence was further denial of natural justice. (sic)
A proper reading of the transcript relating to the comments made by the Master, show that in fact the Master was speaking of the onus upon the defendant in seeking to strike out the plaintiff’s statement of claim. The Master said:
Subject to some minor technical hitch, which I think you can overcome, if this point can’t be made out to the point such that it is arguable, that’s all you’ve got to show, then I strike out the statement of claim. If it’s arguable the matter proceeds further.
The passage where the Master went on to say “In terms of a question of law, it’s got to be strongly clear, clear to a very significant extent and maybe even absolute” must be considered in that context. The Master went on to say: “If I consider that you have an arguable case of substance, then you go to the next stage.” Accordingly there is nothing in the plaintiff’s point on that issue.
Conclusion
As I have said the Master conducted a careful analysis and review of the plaintiff’s various actions. The submissions that the Master failed to consider the documents lodged by the plaintiff and the facts of the case and failed to give proper consideration to the relevant statements, is entirely unfounded. So is the submission that there was a denial of natural justice. He found that none of the plaintiff’s allegations relied upon to show that the defendant was liable for damages constituted an arguable claim. In my view the Master came to the correct conclusion. In doing so I bear in mind the cautious approach to be taken by a court when considering a defendant’s application to strike out a plaintiff’s claim on the basis that no cause of action, or no arguable claim, is made out.
It is unfortunate that the plaintiff has embarked on a lengthy, arduous and ultimately fruitless task of attempting to overturn the original decision in the Workers Compensation Tribunal, and to undo the settlement he later reached, in order to re-agitate his claim relating to work injuries.
The plaintiff bears the onus of persuading me that the decision of the Master should be overturned and I am not so persuaded.
The appeal is dismissed.
I will hear the parties as to costs.