Di Paolo v Salta Constructions Pty Ltd (No 2) - [2016] VSC 741

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 04005

MASSIMO DI PAOLO	Plaintiff
v
SALTA CONSTRUCTIONS PTY LTD	First Defendant
- and -
SAFE LABOUR HIRE PTY LTD	Second Defendant
- and -
GCS RAPID ACCESS PTY LTD	Third Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2016
DATE OF JUDGMENT:	6 December 2016
CASE MAY BE CITED AS:	Di Paolo v Salta Constructions Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 741

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CHOICE OF LAW – Worker employed in Victoria injured in accident in Western Australia – Worker’s Victorian proceeding against Western Australian contractors statute barred – Claim continuing against Victorian employer - Contribution claims by employer against Western Australian contractors – Applicable law – State with closest connection - Contractors’ application for summary dismissal of contribution notices – Discretion to refuse summary judgment – Employer’s application for particular discovery against one contractor – Possible subsequent application to amend contribution notice to include contract claim – Relevance of separate Victorian proceeding by employer against contractor claiming indemnity – Wrongs Act 1958 s 23B; Civil Procedure Act 2010 ss 63 and 64, Supreme Court (General Civil Procedure) Rules 2015 Order 11.01.

PRACTICE AND PROCEDURE – Contribution notice – Summary judgment application – Possible application to amend contribution notice after discovery obtained - Whether no reasonable prospect of success –Whether summary judgment should be granted – Civil Procedure Act 2010 ss 63 and 64; Supreme Court (General Civil Procedure) Rules 2015 Order 11.01, 11.15, 36.01.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff and Non-Party	Mr S A Smith	Slater & Gordon
For the First Defendant	Mr M F Wheelahan QC and Mr R Kumar	Wisewould Mahony
For the Second Defendant	Mr J Ruskin QC and Mr J C Simpson	DLA Piper
For the Third Defendant	Mr N Y Rattray	Moray & Agnew

HIS HONOUR:

Background

Mr Di Paolo was seriously injured on 11 August 2009 while working on a worksite in Perth. He was employed by the first defendant, Salta Constructions Pty Ltd (‘Salta Constructions’) and was working temporarily in Perth. His account of his injuries was that he was standing on a flight of aluminium access stairs when they dislodged from the scaffolding to which they were attached and collapsed beneath him. He fell approximately 8.5 metres to the ground and suffered severe head, spinal and other injuries.

By proceeding commenced in this Court on 4 December 2009, Mr Di Paolo claimed damages from Salta Constructions, his employer, the second defendant, Safe Labour Hire Pty Ltd (‘Safe Labour Hire’) which erected scaffolding on the worksite, and the third defendant, GCS Rapid Access Pty Ltd (‘GCS’) which supplied the scaffolding.

On 12 February 2015, I answered questions asked by the parties and ruled that the substantive law of Western Australia, including applicable limitation periods, governed the plaintiff’s claims against the second and third defendants and that the substantive law of Victoria governed his claim against the first defendant.[1] On 4 September 2015, the Court of Appeal dismissed an appeal against that judgment.[2]
[1]Di Paolo v Salta Constructions Pty Ltd and Ors [2015] VSC 31.
[2]Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 (‘Di Paolo – Court of Appeal’).

The result of these findings was that the plaintiff’s claims against the second and third defendants were statute barred by Western Australian law[3] as the action for damages was commenced when three years had elapsed since the cause of action accrued.
[3]Limitation Act 2005 (WA) s 14 (1).

The second and third defendants sought summary judgment against the plaintiff. On the return of their summonses, I ordered that the plaintiff’s proceeding against the second and third defendants be dismissed because it was statute barred. The plaintiff’s claim against Salta remained on foot.

Other proceedings

In proceeding S CI 2014 00027, the Victorian WorkCover Authority sued Safe Labour Hire and GCS in recovery proceedings under s 138 of the Accident Compensation Act 1985.[4]
[4]Accident Compensation Act 1985 s 134.

In proceeding S CI 2015 04103, Salta sued Safe Labour Hire by a generally endorsed writ seeking a contractual indemnity in respect of liabilities arising out of the injuries to Mr Di Paolo. The writ appears not to have been served. In the general endorsement, Salta alleged that:

5. In or about February 2009 [Salta] and [Safe Labour Hire] entered into an agreement (the scaffolding agreement) for the supply and installation of scaffolding at the [Perth] premises … (the scaffolding works) ;
…
7. Further or alternatively, in or about February 2009 [Salta] and [Safe Labour Hire] entered into an agreement (the gantry agreement) for the supply and installation of a gantry at the [Perth] premises … (the gantry works) ;
…
16. The accident arose:
(a)in connection with a breach by [Safe Labour Hire] of the scaffolding agreement, further or alternatively, the gantry agreement;
(b)further or alternatively, out of the performance by [Safe Labour Hire] of the scaffolding works, further or alternatively the gantry works.

17. Pursuant to the terms of the contracts between [Salta] and [Safe Labour Hire] … [Safe Labour Hire] is obliged to indemnify and keep indemnified [Salta] in respect of:
(a)any award of damages and costs made as against [Salta] in [this proceeding];
(b) past and future costs and expenses incurred by [Salta] in defence of [this proceeding]; and
(c)the statutory compensation [paid to Mr Di Paolo pursuant to the provisions of the Accident Compensation Act 1958].

Salta claims a declaration that Safe Labour Hire is obliged to indemnify it, and keep it indemnified, in respect of the matters in paragraph 17, set out above, damages and specific performance by Safe Labour Hire of its obligation pursuant to the agreement to indemnify it, and keep it indemnified, in the terms set out in paragraph 17.

The Notices of Contribution

After I had ordered that the plaintiff’s proceeding against Safe Labour Hire and GCS be dismissed, the hearing on 15 June 2016 continued in respect of Safe Labour Hire’s and GCS’s applications for summary dismissal of Salta’s claims for contribution against them.

Salta had filed Notices of Contribution in similar terms dated 16 September 2013 against Safe Labour Hire and GCS. Salta’s contribution notice against Safe Labour Hire stated:

TAKE NOTICE that the plaintiff has brought this proceeding against the defendants to recover damages for loss sustained as a result of an accident which is alleged to have been caused by the negligence of the defendants on 11 August 2009, as alleged in Plaintiff’s Writ and Statement of Claim dated 22 July 2013:
AND TAKE NOTICE that the first defendant claims to be entitled to contribution from the second defendant in respect of any sum which the plaintiff may recover herein against the first defendant to the extent of such amount as may be found by the Court to be just and equitable having regard to the extent of the second defendant’s responsibility for such damage it is on the ground that the second defendant’s negligence caused or contributed to the happening of the alleged accident and complained of by the plaintiff.

Safe Labour Hire and GCS sought summary judgment in respect of Salta’s contribution notices. They relied on s 63(1) of the Civil Procedure Act2010, the inherent jurisdiction of the Court and Order 22 of the Supreme Court (General Civil Procedure) Rules 2015.

The principal issue to be decided was whether Salta’s notices of contribution were to be determined according to Victorian contribution law, or the substantive law of Western Australia.

The statutory basis for contribution in Victoria is s 23B of the Wrongs Act1958, which states:

23B Entitlement to contribution
(1)Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).
(2)A person shall be entitled to recover contribution by virtue of subsection (1) notwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred provided that that person was so liable immediately before that person made or was ordered or agreed to make the payment in respect of which the contribution is sought.
(3)A person shall be liable to make contribution by virtue of subsection (1) notwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred unless that person ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against that person in respect of the damage was based.
(4)Subject to section 24(2B), a person who in good faith has made or agreed to make any payment in settlement or compromise of a claim made against that person in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not the person who has made or agreed to make the payment is or ever was liable in respect of the damage provided that that person would have been liable assuming that the factual basis of the claim against that person could be established.
(5)Subject to section 24(2B), a judgment given in an action brought by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought.
(6)References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against that person in Victoria by or on behalf of the person who suffered the damage and it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a place outside Victoria.

In Western Australia, the statutory basis for contribution is the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) (‘the Western Australian Contribution Act’), which states in relevant respects:

(1)Subject to Part 1F of the Civil Liability Act 2002, where damage is suffered by any person as the result of a tort —
(a)judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage;
(b)…
(c)any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise but so that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability for which contribution is sought.

…
(2)In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

A significant feature of s23B(3) of the Wrongs Act is that enables a defendant to claim contribution against a co-defendant even though the plaintiff’s claim against the co-defendant has been dismissed because of a limitation defence.

Section 23B was amended to its current form following a United Kingdom Law Commission report in 1978, which recommended that:

[F]or the purposes of contribution proceedings, neither party should be allowed to challenge a finding of non-liability made in favour of the other in an action brought against the other by the plaintiff, provided that the finding was made after a trial ‘on the merits’ by which we mean to exclude dismissal for want of prosecution, judgment that was obtained ‘collusively’ and ‘judgment on a limitation point’.[5]

[5]The Law Commission (Law Com. No 79 1977), Law of Contract, Report on Contribution, 24.

Section 1(3) of the Civil Liability (Contribution) Act 1978 (UK), which was enacted to give effect to the Law Commission recommendation, contained the terms that were later enacted in s 23B of the Wrongs Act.

In Nottingham Health Authority v Nottingham City Council,[6] Balcombe LJ stated in respect of s 1(3):

However, section 6 of the Act of 1935 was repealed and replaced by the Civil Liability (Contribution) Act 1978, which came into force on 1 January 1979. Section 1(1) of that Act provides that, subject to the following provisions of the section, any person liable to make contribution from any other person may recover contribution from any other person liable in respect of the same damage. However, section 1 (3) provides that a person shall be liable to make contribution by virtue of section 1(1) notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, unless he ceased to be liable by virtue of the expiry of a period of limitation which extinguished the right on which the claim against him in respect of the damage was based. The effect of the words I have emphasised is that, where, as in the present case, the effect of the Limitation Act 1939 is to bar the remedy, but not extinguish the right, the fact that a tortfeasor against whom contribution is claimed has been sued to judgment and found not liable because of a successful plea of limitation does not preclude his liability to contribute, and to that extent George Wimpey & Co Ltd v British Overseas Airways Corporation has been reversed in respect of causes of action arising since 1 January 1979. (italics in original).

[6][1988] 1 WLR 903, 906 (Fox LJ and Sir Frederick Lawton agreeing).

The Victorian amendments to the Wrongs Act followed the report of the Chief Justice’s Law Reform Committee on Contribution of 3 April 1979. In the second reading speech for the Wrongs (Contribution) Bill, the Attorney-General referred to the UK Law Commission Report which led to the 1978 legislation. The Attorney-General stated that among the particular features of the Bill was:

(e) it provides that neither party is entitled to challenge a finding of non-liability made in favour of the other in an action brought by the plaintiff –provided that the finding was made after a trial ‘on the merits’, that is, the finding of non-liability was not due to such factors as dismissal for want of prosecution, on the grounds that judgment was obtained collusively or that [the] time [for] period from bringing the action had expired.[7]

[7]Victoria, Parliamentary Debates, Legislative Council 5 June 1985, 795-6 (Mr J H Kennan).

As previously mentioned, the effect of s 23B(3) of the Wrongs Act is that a judgment based on a limitation defence does not prevent the party obtaining the judgment from being liable to contribute to another party. However, no such provision has been introduced into the Western Australian Contribution Act.

Submissions of the Parties
The second defendant – Safe Labour Hire

Safe Labour Hire submitted that its judgment against Mr Di Paolo must be on the basis that it followed the Court’s finding that his proceeding against it was governed by the laws of Western Australia, and was statute barred by virtue of s 14(1) of the Limitation Act 2005 (WA).

Therefore, Salta’s claim for contribution against Safe Labour Hire had no real prospect of success within the meaning of s 63(1) of the Civil Procedure Act 2010 and should be summarily dismissed.

The High Court decision in James Hardie & Co Pty Ltd v Seltsam Pty Ltd[8] made clear that if a court found that the target tortfeasor was not liable to the tort victim because of a limitation defence, when orders are made and entered accordingly, the claimant tortfeasor had no right of contribution against the target tortfeasor.[9]
[8](1998) 196 CLR 53.
[9]Clutha v Millar (No 4) [2002] NSWC 703 [22] and [28].

In support of its submission, Safe Labour Hire relied on the following passage in the Court of Appeal’s judgment in this proceeding:

We now turn to the applicant’s submissions about the inconvenience that results from the judge’s construction of s 129MB. The effect of that interpretation in particular cases where claims are made against an employer and a non-employer in the same proceeding is that different and incompatible laws will apply to each claim. That would certainly be the position in the present case if the applicant’s claims against Safe Labour Hire and GCS were not statute barred. There are two reasons for this. First, the provisions of the AC Act dealing with available heads of damage and caps on recoverable amounts differ from those in the WA Act. Secondly, a claim for contribution by Salta against Safe Labour Hire and GCS would be determined by the common law choice of law rules whereas a claim for contribution by those companies against Salta would be determined by s 129MB(1) of the AC Act.[10]

[10]Di Paolo – Court of Appeal [123] (emphasis added).

Safe Labour Hire submitted that the effect or consequence of the choice of law findings in its favour was to defeat Salta’s right to recover statutory contribution under the Western Australian Contribution Act, because s 7(1)(c) of that Act required that Safe Labour Hire had ‘been made liable’ to the plaintiff or ‘would, if sued, at any time had been liable, to the plaintiff’. Safe Labour Hire’s judgment against Mr Di Paolo meant that neither limb of s 7(1)(c) applied.

Safe Labour Hire submitted that Salta’s claim against it for contribution whether in tort, restitution, or otherwise was governed by the substantive law of Western Australia. If Salta’s claim for contribution was characterised as in tort, the Western Australian law applied as the lex loci delicti. If it was characterised as quasi-contractual, the choice of law rules pointed to the law of the state with which Safe Labour Hire’s obligation to make contribution had the closest connection and, in this case, that was the law of Western Australia. The law of Western Australia provided the closest connection to the amount of contribution, if any, that was ‘just and equitable’ as between Salta and Safe Labour Hire based on the underlying events involving Safe Labour Hire’s alleged acts or omissions, which occurred in Perth.

Safe Labour Hire also relied in respect of the choice of law rules on the decision in Fluor Australia Pty Ltd v ASC Engineering Pty Ltd,[11] in which Bongiorno J stated:

Section 23A of the Act provides that contribution between wrongdoers is available whatever the basis of each of their liabilities to the person who has suffered damage might be– tort, breach of contract, breach of trust or otherwise.[12]

[11](2007) 19 VR 458.

[12]Ibid, 470 [39].

His Honour referred to the High Court decision in John Pfeiffer Pty Ltd v Rogerson,[13] which decided that the law to be applied in tort was the law of the place where the tort was committed or occurred - the lex loci delicti, and stated that that proposition was as much applicable to a contribution claim as a claim in tort. His Honour stated:

Although Pfieffer was concerned with tort liability, its principle is wide enough to encompass liability to contribution as that right is understood in the statutes of the various Australian jurisdictions. It could not be suggested that contribution concerns only procedural rights so as to give primacy to the law of the forum. The principle in Pfeiffer is as much as applicable to such a claim as to a claim in tort. This is so whether a claim to contribution can be characterised as restitutionary or defined by reference to the character of the underlying liabilities upon which it is based or can be described in some other way.[14]
…
Consistently with Pfeiffer, the unique Victorian remedy of contribution should be available to and in respect of wrongdoers, regardless of the juridical source of their wrongdoing, only in those cases to which, by the application of appropriate common law choice of law rules, Victorian law should be applied.[15]
[13](2000) 203 CLR 503.
[14](2007) 19 VR 458,473[52].
[15]Ibid, 474 [54].

The third defendant - GCS

GCS also sought summary dismissal of Salta’s contribution notice issued against it. Its submissions were similar to those of Safe Labour Hire. They included that the applicable law for determining whether Salta could claim contribution from it was s 7 of the Western Australian Contribution Act. It also contended that a party who successfully defended an action brought by the injured party was not liable to contribution to any other tortfeasor as it was neither a tortfeasor liable to pay damages nor a tortfeasor who had not been sued and who would have been liable if sued.[16]
[16]GCS relied on James Hardie& Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 and Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213, 218.

The first defendant - Salta

Salta submitted that Safe Labour Hire and GCS had not established that its contribution notices had no real prospect of success.

Alternatively, it submitted that the Court should not strike out the contribution notice directed to Safe Labour Hire pending the hearing and determination of Salta’s summons filed 14 December 2015 for particular discovery, and any consequential application by Salta to amend its contribution claim against Safe Labour Hire.

Salta described Mr Di Paolo’s cause of action against it as governed by the laws of Victoria and subject to a statutory scheme under which the common law cause of action was contingently extinguished, and then revived by the engagement of one of the gateways under s 134AB of the Accident Compensation Act 1985, which provides for the circumstances in which a worker may recover damages for non-pecuniary loss and pecuniary loss.

The claim for contribution in this case was not in respect of a tort, but was a statutory cause of action in the nature of restitution. In support of that proposition, Salta relied on the decision of the New South Wales Court of Appeal in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd.[17] The choice of law rules in restitution were that the law with the closest connection to the obligation to make contribution applied. In this case, by the application of those rules, Victorian law applied. As a result, due to the application of s 23B(3) of the Wrongs Act, Salta’s contribution claims would not be barred by the judgment given in favour of Safe Labour Hire or GCS.
[17](2015) 89 NSWLR 104, 108-9 [18] (‘Redbro’).

The law of Victoria was the source of any obligation of Salta to pay damages to the plaintiff. Salta based this argument on the integration between the common law cause of action in tort and the statutory benefits provided under the Accident Compensation Act. It relied on the High Court decision in Sweedman v Transport Accident Commission[18], which had considered the statutory cause of action brought by the Transport Accident Commission (‘TAC’) under s 104 of the Transport Accident Act1986 to recover an ‘indemnity’, but the conditions necessary to engage that indemnity included tortious liability.[19] The cause of action under s 104 was not different from the plaintiff’s cause of action in this case. It was a statutory cause of action to seek restitution of benefits conferred upon an injured person by operation of law.
[18](2006) 226 CLR 362 (‘Sweedman’).
[19]See s 138 of the Accident Compensation Act 1985.

Salta’s obligation to pay damages to the plaintiff arose under Victorian law. Under contribution law, the cause of action did not need to have crystallised at the time the proceeding was commenced, which in this case occurred by the filing of the contribution notice. In those circumstances, Salta’s contribution claims would not be affected by judgments given in favour of Safe Labour Hire or GCS against the plaintiff. Section 14(1) of the Limitation Act 2005 (WA) only barred the plaintiff’s remedies and not his rights.

The Court of Appeal judgment in this proceeding expressed no concluded view as to the applicable law governing Salta’s claim for contribution.

Analysis

In my opinion, the principles discussed in Sweedman do not determine this case. Sweedman concerned a claim by the TAC brought in the County Court of Victoria for indemnity under s 104(1) of the Transport Accident Act in respect of compensation payments paid to a Victorian driver who had been involved in a collision with a vehicle driven by a New South Wales driver in New South Wales.

Section 104(1) gave the TAC, in certain circumstances where payments had been made under the Transport Accident Act, a right to be indemnified by the person who would have been liable to pay damages in respect of the pecuniary loss for injury arising out of the accident.

The New South Wales driver contended that s 104(1) was invalid and inapplicable against her on the ground that there was an inconsistency between the New South Wales Act and the Victorian Act which should have been resolved in favour of the former.

The majority of the court held that s 104(1) applied to the New South Wales driver. They referred to Nettle JA’s description of the right of indemnity given by s 104(1) as being:

enforceable as a quasi-contractual cause of action in the nature of a quantum meruit.[20]

[20]Sweedman, 401 [29].

The majority decided that the choice of law rules applicable were the law of the state with which the obligation of the appellant to indemnify the TAC had the closest connection. They stated:

However, it is unnecessary to determine here which of the above classifications is correct as the first step in identifying the applicable choice of law rule. This is because, as noted above, the identification of the law of Victoria as the source of the compulsion upon the Commission to make the payments to the injured parties (to Victorian residents), and thus of a restitutionary obligation, is a significant pointer to the selection of the law of Victoria as the law with the closest connection to the indemnity entitlement of the Fund against the tortfeasor. Whichever competing thesis be adopted, the road so chosen leads to the law of Victoria rather than to that of New South Wales.[21]

[21]Sweedman, 402 [32].

The significant point of difference in the present case is that Sweedman involved a claim for recovery by a statutory authority under Victorian law of payments that it was obliged to make under that law. This proceeding cannot be so characterised.

Some guidance as to the identification of the state with the closest connection to the obligation to make contribution is contained in the obiter dicta of Leeming JA in Redbro,[22] which concerned a truck driver, whose employer’s principal place of residence was New South Wales, but who was injured in an accident in Western Australia. His Honour stated:

It is not necessary to resolve the characterisation question finally. The
answer would only matter if the claim for statutory contribution be characterised as quasi-contractual and the law of the state with which the obligation on the part of Redbro to make contribution to Ceva has the closest connection were not Western Australia. But there is surely much to be said for the view that Western Australian law applied, either as the lex loci delicti or as the law with the closest connection to the determination of the amount of contribution that was ‘just and equitable’ as between Ceva and Redbro arising from their tortious conduct in Perth in January 2006. I struggle to see how Ceva’s and Redbro’s status as tortfeasors, based upon events all of which occurred in Western Australia, is altered by the consent judgment obtained from the District Court of New South Wales. Nor do I see why, had a judgment been obtained from the Supreme Court of Victoria, the more broadly worded provisions of the Wrongs Act 1958 (Vic) would apply, a concern shared by Bongiorno J in Fluor Australia Pty Ltd v ASC Engineering Pty Ltd. [23]

[22](2015) 89 NSWLR 104.

[23]Ibid, 109 [19] (citation omitted).

If the lex loci delecti applied to the occurrence of the wrong causing Mr Di Paolo’s injuries, the applicable law would be that of Western Australia.

However, I consider that a claim for contribution is in the nature of a claim for a restitutionary obligation and that the common law choice of law rules relating to restitution apply. They make applicable the law of the state with which the obligation to make contribution has its closest connection. In my opinion, in this case, that law is the law of Western Australia. Mr Di Paolo was injured on a worksite in Perth to which he had gone to perform work for Salta. His claims against Safe Labour Hire and GCS were to be determined under Western Australian law. None of the features of Sweedman[24] that were emphasised by the High Court are present in this proceeding.
[24]Sweedman.

As a result, Salta’s contribution claims against Safe Labour Hire and GCS are statute-barred. Therefore, neither limb of s 7(1)(c) of the Western Australian Contribution Act is applicable to Safe Labour Hire or GCS’s contribution claims. Neither Safe Labour Hire nor GCS are liable, or would if sued be liable, for the same damage for which Salta may be liable.

There being no other matter relied on by Salta in opposition to GCS’s claim for summary judgment, that application should be granted.

Salta’s submissions about the significance of its discovery application against Safe Labour Hire

Salta relied on another matter to resist Safe Labour Hire’s claim for summary judgment on its contribution claim. It submitted that the Court should not strike out its contribution notice directed to Safe Labour Hire pending the hearing and determination of its summons filed 14 December 2015 seeking particular discovery of quotations and purchase orders for the installation of stairs. Salta’s summons was issued before Safe Labour Hire applied to amend its summons to seek summary judgment on Salta’s contribution notice. It obtained that leave on 4 March 2016.

Salta’s summons dated 14 December 2015 sought orders pursuant to Order 29.08(2) for Safe Labour Hire to make particular discovery in respect of the following:

1.Documents relating to the contract described in paragraph 6(a) of the Amended Statement of Claim.
2.Documents relating to any contract/agreement involving the Second Defendant pursuant to which the access stairs referred to in paragraph 4 of the Amended Statement of Claim (the stairs) were designed, supplied and ultimately installed at the premises (as defined in paragraph 4 of the Amended Statement of Claim);
3.Documents relating to quotes prepared or submitted by or on behalf of the Second Defendant in respect of the design, supply or installation of the stairs, including any terms and conditions attached thereto;
4.Documents relating to purchase orders submitted by the First Defendant to the Second Defendant for the design, supply or installation of the stairs, including any terms and conditions attached thereto;
5.Documents relating to scaffold request forms submitted by the First Defendant to the Second Defendant relating to the design, supply or installation of the stairs, including any terms and conditions attached thereto.

On 6 February 2016, Salta’s summons was adjourned by consent to a date to be fixed.

Salta’s submissions

Salta submitted that after its particular discovery summons is determined it might apply to amend its contribution notice to introduce a claim in contract. It sought particular discovery to enable it to determine whether to apply to amend its contribution notice under Order 36 to claim not just a contractual indemnity, which it claimed in its generally endorsed writ in the other proceeding, but also damages for breach of contract.

Salta submitted that until the hearing on 15 June 2016, when I ordered summary judgment for Safe Labour Hire and GCS against the plaintiff’s claims, there was no obstacle to its claim for contribution from Safe Labour Hire, if such a claim was maintainable under the Western Australian legislation, on the assumption that it was the applicable law. But, the orders for summary judgment established that Mr D Paolo did not have a remedy against Safe Labour Hire and GCS.

Salta’s contribution notice was filed on 16 September 2013. The limitation period for claims in contract under Western Australian law is six years.[25] Therefore, if Salta obtained leave to amend its contribution notice to include a claim for damages against Safe Labour Hire in contract, that claim would not be statute barred.
[25]Limitation Act 2005 (WA) s 13.

The date of the accident was 11 August 2009. Salta’s generally endorsed writ against Safe Labour Hire was not filed until August 2015. Salta submitted that the claim for an indemnity in the generally endorsed writ was not statute barred because Safe Labour Hire’s obligation to indemnify it did not arise until there was a liability. But, a claim for damages for breach of contract might be barred because that cause of action might have accrued when the gantry was installed.

As previously mentioned, Salta submitted that if it succeeded in its discovery application, it might apply to amend its contribution notice against Safe Labour Hire to add a claim in contract. That possibility, and the possibility that the claim in contract under the generally endorsed writ might be statute barred, should persuade the Court not to grant Safe Labour Hire summary judgment on the contribution notice.

If Salta had been able to obtain particular discovery of the documents that it sought before Safe Labour Hire had been granted leave to amend its summons on 4 March 2016 to claim summary judgment against it, it would have been in a position to make the application to amend at an earlier time and may have obtained leave to amend its contribution notice.

Safe Labour Hire should have previously provided Salta with the documents that it sought under the obligations imposed by the Civil Procedure Act, without the need for an application to the Court. Safe Labour Hire’s correspondence responding to Salta’s requests for documents ceased towards the end of 2015, probably because Safe Labour Hire was concentrating on its summary judgment application against Mr Di Paolo.

Salta’s summons for discovery had not been decided. It was supported by an affidavit of Salta’s solicitor, Mr A McDonald. He explained that Salta had filed a generally endorsed writ dated 7 August 2015, against Safe Labour Hire in Proceeding No. S CI 2015 04103 alleging that:

(a) the first defendant and the second defendant entered into agreements for the supply and installation of scaffolding and gantry at the premises ('the agreements');

(b) the accident arose in connection with a breach by the second defendant of the agreements and/or the performance by the second defendant of its obligations under the agreements;

(c) pursuant to the terms of the agreements, the second defendant was obliged to indemnify and keep indemnified the first defendant in respect of:

(i) any award of damages and costs made as against the first defendant in the proceeding;

(ii) past and future costs and expenses incurred by the first defendant in the defence of the proceeding;

(iii) statutory compensation paid to the plaintiff pursuant to the provisions of the Accident Compensation Act 1985.

Mr McDonald stated that Salta, in due course, would seek orders that Proceeding No. S CI 2015 04103 be heard concurrently with this proceeding.

Mr McDonald’s affidavit then described his attempts to obtain documents from Safe Labour Hire concerning its contractual relationship with Salta. He referred to and exhibited a report by WorkSafe Western Australia in respect of the plaintiff’s fall on 11 August 2009. The report stated:

A modular scaffolding system had been erected to support a number of aluminium Stairflight stairs in allowing access from the ground to the construction site amenities and office area on a 3 level gantry. The modular scaffolding structure also provided access from the gantry area to the building under construction…
…
An agreement existed between Salta Construction Pty Ltd and Safe Labour Hire Pty Ltd and it described the WorkSafe Labour Hire Pty Ltd. It agreed to undertake it at the construction site; however the document was not signed by another party.

The unsigned agreement was exhibited.

Mr McDonald exhibited documents that Salta had provided to his firm. He stated that, on 14 May 2015, he had received a letter from Safe Labour Hire’s solicitors in which it claimed from Salta an indemnity with respect to the claims made by Mr Di Paolo in this proceeding, the claims made by the Victorian WorkCover Authority pursuant to s 138 of the Accident Compensation Act in proceeding No. S CI 2014 00027, which is a recovery proceeding, and claims made by the GCS for contribution or indemnity in this proceeding and the recovery proceedings. The letter stated:

Further, we are instructed that between February 2009 to November 2010, your client sent scaffolding requests from time to time to our client requesting our client to perform scaffolding work on the Site (Agreement). The Agreement included our client’s standard terms and condition, which were attached to the scaffolding request. A copy of the scaffolding request incorporating our client’s standard terms and conditions is enclosed.

On 15 June 2015, Mr McDonald emailed Safe Labour Hire Hire’s solicitor seeking clarification of their letter and copies of documents to which it referred. He wrote:

·Please provide us with a copy of the referred to ‘Agreement’ if that is the document separate to the attached scaffolding request.
·Advise whether you are saying that the attached scaffolding request is a document relating to the subject stairs?
·Advise whether you are saying that the attached terms and conditions was a part of the ‘Agreement’ and/or a part of the scaffolding request – and if so, which one? If so, do you have signed copies that you can provide? If so, please also advise when we can inspect the original documents.

On 23 September 2015, Safe Labour Hire Hire’s solicitors replied stating:

1.The agreement was reflected by my client’s standard terms and conditions. Those terms and conditions were attached to (and incorporated into) our client’s scaffolding requests, which were completed and submitted by your client.
2.The scaffolding request enclosed with our letter was an example of the scaffolding request submitted by your client. There were numerous scaffolding requests submitted by your client to my client during the course of the project.
3.As is self -evident from the scaffolding request, my client provided your client with a pink and yellow copy of each of the scaffolding requests and your client should have originals of each of these documents.

Mr McDonald stated that his firm had made additional enquiries of Salta and that based on them he believed that:

(a) There was a contractual agreement between Salta and Safe Labour Hire for the provision of scaffolding at the premises – the Perth worksite;

(b) Scaffolding was generally installed at the premises at Salta’s request. Safe Labour Hire would attend the premises and assess Salta’s scaffolding requirements. Safe Labour Hire would submit a drawing of the proposed scaffolding and an associated quote for material and labour. Salta would then deliver a Purchase Order for the works requested to Safe Labour Hire. The stairs were installed according to this procedure;

(c) Salta prepared a drawing of the stairs which were required at the premises and it was provided to Safe Labour Hire, which attended the premises to assess what was required. Safe Labour Hire prepared and provided to Salta its own drawing of the stairs;

(d) Safe Labour Hire had proposed that the stairs be attached to a gantry installed by a separate entity, Hire Access and Salta sought approval from Hire Access for the stairs to be so attached.

Mr McDonald stated that Salta had looked for, but has been unable to locate, the following documents:

(a) any quote submitted by or on behalf of Safe Labour Hire to Salta in respect of the design, supply or installation of the stairs, including any terms and conditions attached thereto;

(b) any purchase order submitted by Salta to Safe Labour Hire in respect of the design, supply or installation of the stairs, including any terms and conditions attached thereto;

(c) any further documents evidencing the agreement between Salta and Safe Labour Hire pursuant to which the stairs were designed, supplied and ultimately installed at the premises.

Safe Labour Hire’s submissions

Safe Labour Hire submitted that Salta’s application for particular discovery should be dismissed. It was a pre-condition to any amendment of Salta’s contribution notice that the existing notice was valid, but it was invalid. Salta’s claim was out of time. The application for particular discovery had nothing to do with the choice of law findings determined in favour of Safe Labour Hire. Even if it did, Salta’s ‘fresh proceeding’, being the proceeding commenced by generally endorsed writ, which sought an indemnity, once served, was the appropriate vehicle for the discovery application.

Analysis

Sections 63 and 64 of the Civil Procedure Act, which deal with summary judgment, state:

63       Summary judgment if no real prospect of success—
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a)       on the application of a plaintiff in a civil proceeding;
(b)       on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

64Court may allow a matter to proceed to trial. Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.

Safe Labour Hire relied on the provisions of ss 63 and 64 of the Civil Procedure Act, on the Court’s inherent jurisdiction and on Order 22.

In Lysaght Building Solutions Pty Ltd v Blanalko[26], Warren CJ and Nettle JA stated that the test of ‘no real prospect of success’ was to be applied by reference to its own language and without paraphrase or comparison with other previous tests.
[26](2013) 42 VR 27, 40 [35].

Section 64 is also relevant as it gives the Court a discretion to allow the case to proceed to trial, if the Court is satisfied that, despite there being no real prospect of success, the proceeding should not be disposed of summarily for either of the two stipulated reasons.[27]
[27]Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd (2011) 35 VR 98.

The power of summary dismissal is to be exercised with caution unless it is clear that there is no question to be tried regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action, which cannot be cured by amendment, or on the basis that the action is frivolous, vexatious or an abuse or process or where the application is supported by evidence.[28]
[28]Lysaght Building Solutions Pty Ltd v Blanalko (2013) 42 VR 27, 40 [35].

However, the possibility of Salta seeking to amend its contribution notice to include a claim in contract has to be taken into account. Safe Labour Hire’s particular discovery application and any subsequent amendment applications are not for me to decide, but their possible outcomes, if pursued, are relevant matters in determining whether Salta’s contribution notice, at least in amended terms, has no real prospect of success.

Salta submitted that it could amend the contribution notice under Order 36.01, which is part of the Amendment Rule and provides in relevant respects:

36.01 General
(1) For the purpose of:
(a)determining the real question in controversy between the parties to any proceeding; or

(b) correcting any defect or error in any proceeding;
(c) avoiding multiplicity of proceedings –
the Court may at any stage, order that any document in the proceeding be amended so that any party have leave to amend any document in the proceeding.

(2)       In this Order document includes -
(a)       originating process;
(b)       an indorsement of claim on originating process; and
(c)       a pleading.
(3)An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.

…
(6)Notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, the Court may make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party's claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
…

The term ‘originating process’ is defined in Order 1.13(1) to mean:

any process by which a proceeding is commenced, and includes a third party notice and, where a counterclaim is made against a person not previously a party to the proceeding in which the counterclaim is made, the counterclaim.

The term ‘pleading’ is defined in Order 1.13(1) to include:

an indorsement of claim on a writ which constitutes a statement of claim, and includes particulars of any pleading.

Order 11.01 provides that:

Where a defendant claims as against a person not already a party to the proceeding (in this Order called the third party) -
(a) any contribution or indemnity;
(b)any relief or remedy relating to or connected with the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or
(c)that any question relating to or connected with the original subject matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and a third party –

the defendant may join the third party as a party to the proceeding and make the claim against that third party by filing and serving a third party notice.

Order 11.15 permits a party to make a claim against another party. It provides:

(1)Where a party claims as against another party to the proceeding any relief of the kind described in Rule 11.01, the party may make the claim against the other party by filing and serving a notice in accordance with this Rule—
(a)within 60 days after the service on the party of the document in the proceeding by which the claim in respect of which the notice is served was made; or
(b)if when the document was served the other party was not a party, then within 60 days after the party became a party.

(2)Paragraph (1) does not apply where the claim could be made by counterclaim in the proceeding.
(3)No appearance to a notice under paragraph (1) shall be necessary if the party on whom it is served has filed an appearance in the proceeding or is a plaintiff, but otherwise this Order applies, with any necessary modification, as if—
(a)the defendant had filed and served a third party notice under Rule 11.01; and
(b)the party on whom the notice is served were a third party joined under that Rule.

(4)Except as provided by paragraph (5), a notice under paragraph (1) shall, with any necessary modification—
(a) be in accordance with Form 11A; and
(b) be indorsed with a statement of claim.
(5)Where a party claims against another party to the proceeding contribution pursuant to Part IV of the Wrongs Act 1958, a notice under paragraph (1) shall be in accordance with Form 11B.

It is important to keep in mind that the question I have to determine is whether Safe Labour Hire has established that Salta’s contribution notice has no real prospect of success. That question is to be answered by taking into account whether any defect in the contribution notice can be cured by the possible amendment that Salta has foreshadowed. It is also necessary to consider the discretion given by s 64 to order that the proceeding – the contribution notice – proceed to trial, despite it having no real prospect of success.[29] The general terms that the ‘contribution notice’ might take if amended – that is, to include a claim in contract – can also be taken into account.
[29]Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd (2011) 35 VR 98.

Salta’s application for particular discovery has yet to be determined. It has been made to assist it decide whether it has a proper basis to apply to amend the contribution notice to include a claim in contract. Salta is already in possession of a number of documents concerning its dealings with Safe Labour Hire, but I cannot determine that it is unreasonable for it to seek further documents. It claims that Safe Labour Hire was obliged by the provisions of the Civil Procedure Act, presumably the overarching obligations, to provide relevant documents of the description that it seeks that are in its possession and that it should not have had to apply to the Court to obtain them. The discovery application was brought before Safe Labour Hire and GCS commenced their summary judgment applications in respect of the contribution notices.

A number of considerations, including issues advanced by Safe Labour Hire and GCS, may affect whether any amendment of the contribution notice would be allowed. It may even be argued that, in the circumstances of this case, the contribution notice cannot be amended to include a claim in contract. Questions of prejudice to Safe Labour Hire, as identified by Order 36.01(6), would be relevant as would, perhaps, the extent to which the amendment would result in a totally new claim, based in contract.[30] The document resulting from such an amendment would change the document from being a contribution notice in the usual form. Salta has indicated that it proposes to apply to have this proceeding and its separate proceeding against Safe Labour Hire heard together. If the contribution notice is amended, following Salta’s application, a question may arise whether Salta could persist with the two proceedings. However, it would be inappropriate for me to express any concluded view on those matters. It is sufficient to take into account in the exercise of discretion that the possible course of action foreshadowed by Salta may result in a claim, that cannot be described as having no real prospect of success. If an amendment to the contribution notice was permitted to include a contract claim, it is not clear that it would be barred by any limitation period.
[30]Weldon v Neal (1887) 19 QBD 394 and Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63.

There is also the significance of Salta’s separate proceeding against Safe Labour Hire. Salta contends that that proceeding may not be able to be amended to include the contract claim. It did not make clear why Order 36.01(6) would not permit such an amendment even if a contract claim limitation period had expired.

Nevertheless, it is significant that Salta’s application for particular discovery has been made in the contribution proceeding and not in the separate proceeding. In the normal course, Salta would have had that application determined by this point.

The above discussion of relevant matters reveals a number of uncertainties as to the future determination of Salta’s particular discovery application and any subsequent application that it may make to amend the contribution notice. In those circumstances, I consider that it would be premature to determine that Salta’s claim for contribution, using that term to include a possible claim in contract against Safe Labour Hire, has no real prospect of success. The possible amendment, yet to be formulated, has not been the subject of any detailed argument. But there is evidence that Salta and Safe Labour Hire had a contractual relationship. As Salta submitted, if its particular discovery application had been determined before I heard Safe Labour Hire’s summary judgment application, it might already have obtained a decision on its application for leave to amend its contribution notice to include a claim in contract.

As a matter of discretion, I consider that it is not appropriate to grant Safe Labour Hire summary judgment in respect of Salta’s contribution notice at this point.

Conclusion

Leave is granted to the second and third defendants to have their applications for summary judgment determined by a Judge of the Court.

The second defendant’s application for summary judgment against the first defendant and for dismissal of its contribution notice made by its further amended summons filed 15 June 2016 is dismissed.

The third defendant’s application for summary judgment against the first defendant and for dismissal of its contribution notice made by its further amended summons dated 15 June 2016 is granted. Therefore, the first defendant’s contribution notice against the third defendant dated 16 September 2013 is dismissed.

I will hear the parties about the other orders that should be made, including about the remaining orders sought in the two summonses, about costs and about the trial of the plaintiff’s proceeding against the first defendant.

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