Dineen, B. v National Terminals (Australia) Ltd

[1991] FCA 93

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) Nos NG 396 and 397 of 1990

GENERAL DIVISION )

Between: BRENDAN DINEEN

Applicant

and: N A T I O N A L T E R M I N A L S

(AUSTRALIA) LTD

Respondent

Between: FRANCIS NOEL CHRISTIAN

Applicant

and:  P A T R I C K S T E V E D O R I N G

OPERATIONS T/AS PATRICK

RECEIVED	STEVEMRTNG COMPANY
FEDERAL COURT OF	Respondent

AUSTRALIA PRINCIPAL REQISTRY

Einfeld J Svdney 18 Februarv 1991

There are two matters before the Court today raising similar novel points of law. Primarily the cases seek to energise the Admiralty Act as a basis for the applicants to obtain lump sum damages for injuries sustained during the course of employment due to the alleged negligence of their employers. The cases are designed to avoid the present exigencies of the New South Wales Workers' Compensation Act (the Act) which has the effect of putting a significant cap on the amount of damages that may be awarded in such circumstances and in some respects on the entitlement to damages at all.

The applicants appear today to seek leave to discontinue the	proceedings under order 22 rule 2(l)(d). In the case of
Dineen, number 396 of 1990, the respondent does not oppose the application. In the case of Christian, number 397 of 1990, there is opposition by the respondent to the application. I shall henceforth refer to this applicant alone as "the applicant" and the respondent to his claim as "the respondent". The New South Wales Attorney General intervenes or seeks to intervene in relation to the argument of the applicability of the Workers' Compensation Act in relation to a claim under the Admiralty Act or alternatively on the availability of the action under the Admiralty Act to circumvent the provisions of the Workers' Compensation Act. But the Attorney General makes no submission in relation to the application for leave to discontinue.
The applicant puts the point of view that under the Act, he would if he proceeded to judgment in the current matter disentitle himself, arguably or in fact, from benefits which the Act would bestow upon him, including the entitlement to continuing weekly payments of compensation. Although at the present time no such claim is made, the applicant projects
that at some time in the future he may wish to advocate such an entitlement. A question also arises about the possible
entitlement of the applicant to what is presently called 'permanent loss compensation' under a Table of Maims pursuant to the provisions of section 151V of the Act.
The respondent points to two problems with the applicant's submission on the motion to discontinue. The first is that he would only lose his rights to weekly compensation under the
Act if he recovers damages in respect of the injury which is the subject of the claim before the Court. That is because the provisions of section 1518 only disentitle a person to continuing compensation under the Act if damages are actually recovered. In this case the parties have agreed that if the Act applies, there will be a verdict for the respondent.
Secondly, so far as the possible entitlement to a future lump sum under the Table of Maims is concerned, the respondent argues that the exclusion of further entitlement under the Act comes into effect, as section lSlV(2) provides, where a person commences proceedings to recover damages, or accepts payment of such damages. In other words, the very fact that this action has been commenced would, so it is argued, means that the applicant has already lost whatever rights he might have had for further lump sum compensation under the Act.
These matters being the case, it is difficult to understand entirely the applicant's submission that he wishes to
discontinue the proceedings on the basis that he would prefer to retain his rights under the Act and not risk their removal
by a verdict in the current proceedings under the Admiralty Act. The parties have agreed that if the Workers' Compensation Act does not apply to this particular claim and the applicant is entitled to damages, judgment should be entered in the sum of $59,954.
Obviously a court should allow an applicant to discontinue wherever possible. Whilst the courts should always be open for the presentation and advocacy of worthy, even arguable, cases or points of law, it does not seem appropriate that an applicant should be compelled to continue litigation which he or she is advised, or chooses, to stop. The only question that needs to be put on the other side of those scales is whether injustice might be caused to the respondent if the litigation is permitted to be discontinued.
The only prejudice to the respondent that I can see here would be the possible need to meet at some future time a claim in the Compensation Court by the applicant for continuing weekly compensation. In that event it may be necessary to reconstruct some aspects of the present case to do so. Although the applicant's counsel was unwilling to spell it out with his usual crystal clarity, I can only assume that it is that right which the applicant primarily wishes to protect. I
do not think that it is appropriate for a Judge, who can only know some small aspects of the politics of litigation, to
inject himself into a matter such as this. The applicant is advised by people of very considerable experience in this area of the law. I am completely convinced that they will have taken into account all his possible rights and losses in making the decision which they have obviously made, and in tendering the advice which they have presumably tendered.
If the respondent's argument is correct, and if the facts as they presently have been advised to me are correct, it seems extremely unlikely that the respondent will at any time in the future have to face the type of case which alone might, it seems to me, cause any prejudice if this litigation is permitted to be discontinued now. If, on the other hand, a future claim is merely a claim for some permanent loss - i.e. a lump sum claim under section 151V - it does not seem likely that the result would be significantly different, at least in terms of liability, than is contained in the agreement between the parties which has been tendered in evidence here, and which settles or appears to settle all the outstanding financial disputes between the parties.
I take into account also that the amount presently in dispute between the parties is not particularly high. It is perfectly obvious that a test case of this kind will not stop at the level of the first instance judge. The concept that this
matter should then go on the appeal circuit is not attractive because it may very well be that the amount involved might
cause problems in getting necessary leave at the High Court level. In a circumstance where an applicant did not seek to continue the litigation, further difficulty would thus be likely to be created for the final resolution of this important issue of law. It seems to me that this issue will have to abide another day and await another case.
I give the applicant leave to discontinue the proceedings in
the case of Christian. In the case of Dineen, I do so by consent.
[ After discussion]
I think the applicants have to choose the bed on which they wish to lie and the course which they wish to follow. No doubt in the advice which has been tendered on the course to be pursued by the applicants, the issue of costs would have played a not insignificant part. I can see no justification for depriving the respondents of their costs where they were ordered by the Court to attend today to argue cases and the applicants have chosen to withdraw them. The respondents in each case will have an order for costs.

I

I certify that thls and the 5

preced~ng pages are a true copy of the

Reasons for Judgment here~n of h ~ s	Honour I
Justice	E~nfeld Assoclate

I Dated: \g ~ ~ \ o p C o ~ ~ I