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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 741
Decision Date: 6 December 2016

CaseChat Overview and Summary

The matter in Di Paolo v Salta Constructions Pty Ltd (No 2) involved a dispute between the plaintiff, Mr Di Paolo, and the defendant, Salta Constructions Pty Ltd, as well as two Western Australian contractors. Mr Di Paolo, an employee of Salta Constructions, was injured in an accident in Western Australia while working on a project for the employer. The dispute centred around the employer's potential liability for contribution from the Western Australian contractors, and the contractors' attempts to have the employer's claims dismissed. The case was heard in the Supreme Court of Victoria.

The court had to determine whether the employer's claims for contribution against the contractors should be summarily dismissed and whether the employer could amend the contribution notice after obtaining discovery from one contractor. The key legal issues were the applicability of the Victorian law, the possibility of amending the contribution notice post-discovery, and the discretion to refuse summary judgment. The court also considered the relevance of a separate indemnity claim by the employer against one contractor in a separate Victorian proceeding.

The Supreme Court of Victoria held that the employer's claims for contribution against the contractors were not statute-barred in Victoria, and the court had discretion to refuse summary judgment. The court found that the employer had a reasonable prospect of success in their claims against the contractors, and therefore, the application for summary dismissal was dismissed. Additionally, the court granted the employer leave to apply to amend the contribution notice after obtaining discovery from one contractor. The court emphasised the importance of considering the state with the closest connection to the dispute when determining the applicable law.

The court made several orders, including dismissing the application for summary dismissal of the contribution notices, granting the employer leave to apply to amend the contribution notice after obtaining discovery from one contractor, and allowing the employer's application for particular discovery against one contractor. The court also noted the possibility of a subsequent application to amend the contribution notice to include a contract claim, and the relevance of the separate indemnity claim by the employer against one contractor in a separate Victorian proceeding.

Orders