| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DE SAN MIGUEL -v- RYANEX PTY LTD [2003] WADC 147 CORAM : REGISTRAR KINGSLEY HEARD : 15 MAY 2003 DELIVERED : 25 JUNE 2003 PUBLISHED : 25 JUNE 2003 FILE NO/S : CIV 1012 of 2000 BETWEEN : ROGER JOHN DE SAN MIGUEL Plaintiff
AND
RYANEX PTY LTD (ACN 009 239 114)
Defendant
Catchwords: Practice - Application to strike out statement of claim - Order 20, r 19(1) Rules of the Supreme Court - Workers' Compensation & Rehabilitation Act 1981 - Order 16 Rules of the Supreme Court application
Legislation: District Court Rules
Rules of the Supreme Court of Western Australia
Workers' Compensation and Rehabilitation Act 1981
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Result:
Application allowed - Judgment entered for the defendant Representation:
Counsel:
Plaintiff : Mr J Sheldrick
Defendant : Mr J S MacDonald
Solicitors:
Plaintiff : D'Angelo & Partners
Defendant : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
McKechnie v Campbell (1996) 17 WAR 62
Nivan v Grant (1903) 29 VLR -102
Re Monger; Ex parte Dutch and Others [2001] WASCA 220; (2001) 25 WAR 96
Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150
Case(s) also cited:
Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Day v William Hill (Park Lane) Ltd [1949] 1 All ER 219
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Fitzgerald v Muldoon [1976] 2 NZLR 615
Gardiner & Anor v Ray [1999] WASC 140
Gluhic v Prok Group Limited [2002] WADC 110
Haasy v Town & Country Demolition Pty Ltd [2002] WADC 81
Home & Overseas Insurance Co Ltd v Mentor Insurance Co (UK) Ltd (in liq) [1989] 3 All ER 74
Howden v Truth & Sportsman Ltd (1937) 58 CLR 416
Lawrance v Lord Norreys (1890) 15 App Cas 210
Martin v City of Perth [2001] WADC 183
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Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405; 13 ACSR 117
Parker v St Bartholomew's House Inc [2002] WADC 175
Quancorp Pty Ltd & Anor v MacDonald & Ors [1999] WASCA 101
Re Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Sparks v Harland (1997) 1 WLR 143
Wilson v Dun's Gazette Ltd [1912] VLR 342
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1 REGISTRAR KINGSLEY: The defendant has brought an application seeking orders that the plaintiff's statement of claim be struck out on the grounds that it discloses no reasonable cause of action or is otherwise an abuse of process of the Court. In the alternative the defendant seeks orders that judgment be entered for the defendant pursuant to O 16, r 1(1)(a) Rules of the Supreme Court.
History 2 The plaintiff alleges that during the course of his employment with the defendant he suffered an injury on 30 May 1994. The plaintiff issued his writ on 1 May 2000. Pursuant to the provisions of s 93D (5) Workers' Compensation & Rehabilitation Act 1981 (The Act) the plaintiff lodged a Form 22 (Referral of Question of Degree of Disability) with the Director of the Conciliation and Review Directorate on 14 December 1999. On 31 December 1999 the Director of the Conciliation and Review Directorate wrote to the defendant attaching a Form 23 (Notice of Referral of Question of Degree of Disability) and enquired whether the defendant objected to the level of disability (not less than 16 per cent) claimed. 3 The defendant objected to the degree of disability and the matter was referred to a Review Officer for determination. Preliminary hearing held was on 27 April 2000. The application was adjourned sine die on that day. 4 On 23 October 2002 Review Officer McCloskey, after receiving a letter from the defendants solicitor requesting the matter be prelisted, wrote to the defendants solicitors raising a question as to his jurisdiction to hear and determine the referred dispute. On 10 December 2002 Review Officer McCloskey dismissed the referred question on the basis that he did not have jurisdiction to determine the referred questions. 5 It would appear, at par 26 of Review Officer McCloskey reasons, that having regard to the matters identified by the Chief Justice in Re Monger; Ex parte Dutch & Ors [2001] WASCA 220; (2001) 25 WAR 96 that the report annexed to the Form 22 did not constitute medical evidence and therefore the Director was in error in accepting the workers referral under s 93D(5) of the Act. 6 On 10 January 2003 the plaintiff issued a notice of application for an extension of time to appeal. Compensation Magistrate Packington on 24 February 2003 dismissed the application for an extension of time to appeal.
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7 This application by the defendant was filed on 26 March 2003.
Extension of time 8 The defendant’s application is out of time. The Court has the discretion to grant an extension of time but there must be adequate reasons in explaining the delay in bringing the application. The action has proceeded for a significant period of time without challenge. 9 However it was not until February 2003 that proceedings in the Compensation and Review Directorate were effectively drawn to a conclusion. Up to February 2003 there may well have been some arguable basis for the claim of the plaintiff. 10 Accordingly whilst the action has proceeded for some time in my opinion good reason has been shown why it was appropriate not to bring an application before March 2003.
Principles of law 11 The defendant has brought its strike out application on two bases namely; No reasonable cause of action 12 The question of whether a statement of claim discloses a reasonable cause of action must be determined on the pleading and not on evidence. On an application under this heading not only must all the facts alleged in the statement of claim be accepted as true but it must be taken for granted that on all other points, the pleading is unassailable (Nivan v Grant (1903) 29 VLR 102 at 106). 13 The cause of action pleaded is an action in which the plaintiff seeks damages for personal injury arising out of the defendants negligence, breach of contract, and/or breach of statutory duty. The provisions of Division 2 of Part IV of the Act do not preclude a worker from commencing or maintaining common law proceedings if they have not obtained a percentage disability determination. However the provisions
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of Division 2 do preclude a worker from obtaining an award of damages until the percentage disability determination has been made (Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150) 14 Accordingly on the pleading I cannot find that the statement of claim discloses no reasonable cause of action and the defendants strike out application on this basis is dismissed.
Abuse of process 15 The jurisdiction to strike proceedings out as an abuse of process must be exercised with great circumspection. Whilst it is a great step to exercise the jurisdiction, if the factual or legal basis for doing so is made out the court has a duty to intervene (McKechnie v Campbell (1996) 17 WAR 62 at 75). An abuse of process need not be manifest on the pleading. Affidavit evidence is admissible to show there is such complete legal bar to the proceedings that the proceedings must fail (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 109). 16 As the matter presently stands the plaintiff is not entitled to an award of damages. His application for degree of disability has been dismissed; he is not entitled to file another application for a determination of a degree of disability of not less than 16 per cent as he is out of time to elect; the plaintiff has not sought to appeal from the Compensation Magistrate's decision, there is no evidence that may be capable of founding a referral of a question as to whether or not the plaintiff has a degree of disability of not less than 30 per cent. Accordingly the plaintiff's action for damages as pleaded is unsustainable. 17 The plaintiff's counsel argues there are proposed amendments to the Act whereby a worker will be entitled to resubmit medical evidence alleging a permanent degree of disability. The proposed amendments are suggested in a media statement from the Minister for Consumer and Employment Protection and Training. 18 Plaintiff's counsel also argues that the plaintiff could at some time in the future obtain a determination that his relevant level of disability is not less than 30 per cent. However no evidence has been put before me to show that there is any chance there could be a determination of disability at not less than 30 per cent.
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19 In my opinion the continuation of the action on this basis would be an abuse of the courts process. Time will be wasted in progressing a claim which ultimately cannot succeed.
20 Whilst comment was made by defendants counsel as to the applicability of case flow management principles as set out in O 1, r 4 of the District Court Rules there are times and occasions where the justice of the case requires that an action not proceed in accordance with the case management time table. In many cases actions under the Act, because of the prevailing state of the law, are not proceeding expeditiously and on application have been stayed.
Summary judgment 21 The power to order summary judgment pursuant to O 16 must be exercised with exceptional caution. The defendant will succeed only if they can demonstrate that there is no serious question to be tried upon any cause of action raised by the plaintiff. 22 In this matter even if the defendant were to concede the plaintiff's claim the court would be unable to award any damages to the plaintiff. The plaintiff has no entitlement to the relief that he is seeking in the writ or statement of claim.
Conclusion 23 I am of the opinion that the continuation of the proceedings is an abuse of process. The plaintiff is not entitled to an award of damages and the continuation of the matter would be an abuse of the courts process. In this matter there is no application on foot before the Workers Compensation Review Directorate such as to warrant a stay of the proceedings. There is no evidence produced that may be capable of founding a referral of the question as to whether or not the plaintiff has a degree of disability of not less than 30 per cent. 24 For the same reasons the defendant’s application pursuant to O 16 succeeds. There is every sensible commercial reason why this action should proceed no further. 25 Accordingly I would enter judgment for the defendant against the plaintiff and give the defendant the costs of the action together with costs of interrogatories and any reserved costs to be taxed.
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26 I note that the defendant in its chamber summons seeks the costs be taxed on an indemnity basis. Indemnity costs in this matter would only have been awarded where the case was manifestly unarguable or there was no chance of success at it inception. That was clearly not the case in this matter and accordingly I do not award indemnity costs.
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