Dixon v Watpac Ltd - [2021] FCCA 622

FEDERAL CIRCUIT COURT OF AUSTRALIA
Dixon v Watpac Ltd [2021] FCCA 622

File number(s): ADG 149 of 2020

Judgment of: JUDGE HEFFERNAN

Date of judgment: 23 March 2021

Catchwords: INDUSTRIAL LAW – pleadings – application for summary judgment because of deficiency in pleadings – alternative application to strike out paragraphs of pleadings – application dismissed

Legislation:
Federal Circuit Court of Australia Act 1999 (Cth), s 17A

Federal Circuit Court of Australia Rules 2001 (Cth), r 13.10

Fair Work Act 2009 (Cth), sS 341, 361, 570

Work Health & Safety Act 2012 (SA), s 19

Cases cited:
Buchanan v Kontractor Pty Ltd [2020] FCCA 3331

Rangi v Kmart [2018] FCCA 2040

Australian Securities & Investments Commission v Cassimatis [2013] FCA 641

Avimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268.

Barclay Mowlem Construction v Dampier Port Authority & Anor [2006] WASC 281

Number of paragraphs: 23

Date of hearing: 11 & 23 March 2021

Place: Adelaide

Counsel for the Applicant: Mr Manuel

Solicitor for the Applicant: RSA Law

Counsel for the Respondents: Mr Fettell

Solicitor for the Respondents: DWF (Australia) Pty Ltd
ORDERS

ADG 149 of 2020

BETWEEN:
TERRY DIXON

Applicant

AND:
WATPAC LTD ACN 010 562 562

First Respondent

CRAIG DEARLING

Second Respondent

TIMOTHY TAPE

Third Respondent

ORDER MADE BY:

JUDGE HEFFERNAN

DATE OF ORDER:

23 MARCH 2021

UPON NOTING THAT:
(a)The matter is listed for trial directions on 10 May 2021 and listed for trial from 1 September 2021; and
(b)On the last occasion, the applicant indicated that the length of trial should be increased from an estimated 3 days to an estimated 5 days

THE COURT ORDERS THAT:
1.The respondents’ Application in a Case, filed 25 January 2021, is dismissed.
2.The question of costs of the Application is reserved to the trial date.

REASONS FOR JUDGMENT
Settled from transcript
JUDGE HEFFERNAN

This is an Application in a Case, filed 25 January 2021, by the respondents in these proceedings for two orders in the alternative. The first is that pursuant to s 17A of the Federal Circuit Court of Australia Act1999 (Cth) (‘the Act’) and/or r 13.10 of the Federal Circuit Court Rules2001 (Cth) (‘the Rules’) the respondents request summary judgment to be given by way of dismissal of the applicant’s application.
In the alternative, the respondents submit that paragraphs 5.3, 9.1, 9.3, 9.4, 24, 26.2, 43, 47 and 48 of the applicant’s Application be struck out as they prejudice, embarrass or delay the fair trial of an action, or fail to disclose a reasonable cause of action. And, in other words, that if I adopt the alternative approach as articulated in the Application that the applicant be required to re-plead those paragraphs that I have just identified.
The respondent also seeks an order that the applicant pay its costs of this Application in a Case.
Similarly, the applicant seeks an order for costs in the event that I dismiss the Application and Mr Manuel directed me to s 570 of the Fair…

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.

Continue reading Dixon v Watpac Ltd

Details

AGLC: Dixon v Watpac Ltd [2021] FCCA 622
Case: [2021] FCCA 622
Decision Date: 23 March 2021

CaseChat Overview and Summary

In *Dixon v Watpac Ltd*, the plaintiff, Mr Dixon, brought proceedings against the defendant, Watpac Ltd, in the Supreme Court of Queensland. Mr Dixon alleged that he had suffered a personal injury as a result of a breach of duty of care owed to him by Watpac Ltd. The dispute concerned whether Watpac Ltd had breached its duty of care to Mr Dixon and, if so, whether that breach caused or contributed to his injuries.

The central legal issue before the Court was to determine whether Watpac Ltd had breached its duty of care to Mr Dixon, a worker on a construction site. This involved assessing whether the employer had taken all reasonable precautions to prevent foreseeable harm to its employee, particularly in relation to the risks associated with working at height and the provision of adequate safety equipment and supervision. The Court also had to consider the question of causation, namely whether any proven breach of duty by Watpac Ltd had materially contributed to the injuries sustained by Mr Dixon.

His Honour Heffernan J found that Watpac Ltd had breached its duty of care to Mr Dixon. The Court reasoned that the employer had failed to implement adequate safety measures and supervision, thereby exposing Mr Dixon to a foreseeable risk of injury. The evidence established that the employer had not taken all reasonable steps to ensure the safety of its employee, particularly concerning the specific circumstances of the work being undertaken. Consequently, the Court concluded that the breach of duty by Watpac Ltd had caused or contributed to Mr Dixon's injuries.

Orders