Downsborough v Pinnacle Services Pty Ltd

[2004] WADC 197

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   DOWNSBOROUGH -v- PINNACLE SERVICES PTY LTD [2004] WADC 197

CORAM:   MARTINO DCJ

HEARD:   22 SEPTEMBER 2004

DELIVERED          :   29 SEPTEMBER 2004

FILE NO/S:   CIVO 123 of 2004

BETWEEN:   JOHN FREDERICK DOWNSBOROUGH

Plaintiff

AND

PINNACLE SERVICES PTY LTD
Defendant

Catchwords:

Workers' compensation - Leave to commence proceedings - Compromise of claim - Whether application for leave an abuse of process

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Workers' Compensation and Rehabilitation Amendment Act 1999

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr P S Bates

Defendant:     Mr G W Nutt

Solicitors:

Plaintiff:     Paul O'Halloran & Associates

Defendant:     Jarman McKenna

Case(s) referred to in judgment(s):

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (5) (1997) 18 WAR 334

Dosset v TKJ Nominees Pty Ltd (2003) 202 ALR 428

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Murcia & Associates (a firm) v Grey (2001) 25 WAR 209

Packer v Meagher [1984] 3 NSWLR 486

Smith v United K G Engineering Services Pty Ltd [2004] WADC 194

Solle v Butcher [1951] 1 KB 671

Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1

Case(s) also cited:

Abbott v Minister for Lands [1895] AC 425

Dossett v TKJ Nominees Pty Ltd [2000] WADC 114

Duca v Aherns Holdings Pty Ltd [2004] WADC 85

Hanna­Pauley v David Jones Limited [2004] WADC 69

Henderson v KCut Pty Ltd & Anor [2004] WADC 13

Jabar­Khail v Troon Holdings Pty Ltd (2004) WADC 108

Mathieson v Burton (1971) 124 CLR 1

Mayne v Mayne Nickless Ltd t/a Wards Express, unreported; FCt SCt of WA; Library No 960223; 26 April 1996

Templeton v Hamersley Iron Pty Ltd [2001] WASCA 179

1. MARTINO DCJ: On 1 June 2004 Registrar Christo ordered that the plaintiff have leave under the now repealed s 93D of the Workers' Compensation and Rehabilitation Act1981 to commence an action against the defendant in respect of a disability suffered on 2 June 1998 and aggravations of the disability that occurred between May and August 1999 which occurred in the course of his employment by the defendant as a tour coach driver.

2. The defendant appeals against the registrar's decision. On the hearing of the appeal the defendant relied upon an affidavit of Kristy Suzanne Weston sworn on 22 July 2004. Much of that affidavit contained submissions which should not have been included in it. However the affidavit also included evidence that in February 2000 the plaintiff and the defendant entered into an agreement under which the plaintiff redeemed under s 67 of the Workers' Compensation and Rehabilitation Act 1981 his entitlement to weekly payments of compensation.  The plaintiff did not object to the defendant relying on that affidavit.  This appeal is a new hearing of the application for leave and a party is permitted to adduce further evidence subject to the court's discretion to exclude it:  Hazart Pty Ltd v Rademaker (1993) 11 WAR 26. I do not exclude Ms Weston's affidavit.

3. The plaintiff did not have an application for leave pending at the time that the Workers' Compensation and Rehabilitation Amendment Act 1999 came into effect. The defendant submits that this Court does not have power to grant leave under the repealed s 93D. For the reasons I gave in Smith v United K G Engineering Services Pty Ltd[2004] WADC 194 I have decided that I should follow earlier decisions of judges of this Court that this Court does have power to grant leave.

The merits of the application

1. The plaintiff contends that he is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.  The plaintiff must show that he has a real and not remote chance of establishing that he has that future pecuniary loss.  Conflicts in the evidence are to be determined on the view of the evidence reasonably open which most favours the plaintiff:  Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1.

2. The plaintiff was born on 5 January 1943 and is aged 61.  On or about 2 June 1998 in the course of his employment by the defendant he injured his back when lifting a heavy insulated food and drink container.  After a month off work he returned to work.  In the course of his employment he suffered further aggravations to his back injury.  He ceased work in August 1999.  He has required surgery and he is left with mechanical back pain and pain radiating down his right leg. 

3. In a report dated 21 December 1999 Mr Paul Bannan, neurosurgeon, expressed the opinion that the plaintiff was then incapacitated for all gainful employment due to his back pain.  In a report dated 13 January 2000 Mr R C Edibam, orthopaedic surgeon, expressed the opinion that the plaintiff was not then fit to return to any form of physical work due to his back pain, but he may be able to undertake an office job provided it allowed him to get up and move around after sitting for any length of time.  In a report dated 20 May 2004 Dr David Kennedy, a medical practitioner who practices in musculoskeletal medicine, expressed the opinion that the plaintiff's disabilities are permanent and that as a result of his injuries the plaintiff is unfit to return to his pre‑injury occupation or any employment for which he has the appropriate education, skills, training and work experience.  In his affidavit sworn on 26 May 2004 the plaintiff has deposed that as a result of the accident and aggravations to his back injury he is totally unfit for work and that he has made attempts to obtain employment but has been unsuccessful.  I am satisfied that on the evidence before me it is likely that the plaintiff will establish that he has no retained earning capacity.

4. The plaintiff has sworn that had he not been injured he believes he would have been able to continue to work to age 70 and that he had no plans to retire early.  The defendant disputes that the plaintiff's claim should be assessed on the basis that he would have worked to age 70.  However the defendant, which is an employer of tour coach drivers, has not produced any evidence to show that its workers do not work past age 65.  For the purposes of this application I am satisfied that it is likely that the plaintiff would have worked to age 70. 

5. The plaintiff will turn 70 in 9 years' time. The multiplier for 9 years is 365.5. The plaintiff ceased working for the defendant in August 1999. His taxation returns for the four financial years prior to his accident disclose an average net income of $524. Using the multiplier of 365.5 gives a figure before contingencies of $191,522. Deducting six per cent for contingencies provides the figure $180,030 which is in excess of the prescribed amount of $139,995. I am satisfied that the requirements of s 93D have been satisfied.

The effect of the redemption

1. Under the memorandum of agreement the plaintiff signed in February 2000 he released the defendant from all claims, whether under the Workers' Compensation Legislation or otherwise. He also signed a form acknowledging that by entering into the memorandum of agreement he forfeited any entitlements that he had to pursue common law damages under s 93D. The 1999 amending Act amended the Workers' Compensation and Rehabilitation Act 1981 to provide that if the liability for incapacity was redeemed under s 67 damages are not to be awarded in respect of that disability: s 93E(13). Whether that amendment applies to the plaintiff's claim following Dosset v TKJ Nominees Pty Ltd (2003) 202 ALR 428 is yet to be determined. Even if it does not the terms of the memorandum of agreement may have compromised the plaintiff's cause of action. The defendant contends that the plaintiff is estopped from pursuing his claim for damages and that it is an abuse of process for him to commence common law proceedings when he is not entitled to an award of damages. The plaintiff contends that there was a common mistake as to the plaintiff's rights and that he is entitled to have the agreement set aside: Solle v Butcher [1951] 1 KB 671.

2. This Court does not have an inherent jurisdiction but it does have an implied power to prevent abuses of its process:  Murcia & Associates (a firm) v Grey (2001) 25 WAR 209. The legal process of a court is being abused when it is being used to exert pressure to effect an object not within the scope of the process, or where it is used for a purpose other than that for which proceedings are properly designed and exist, or where the plaintiff is seeking a collateral advantage beyond what the law offers: Packer v Meagher [1984] 3 NSWLR 486 at 492. That dicta has been applied in the Supreme Court of Western Australia: Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (5) (1997) 18 WAR 334 at 344.

3. The ability to strike out an action in this Court as an abuse of process is therefore limited.  It is not sufficient to show that the plaintiff's claim is weak or that he would not be able to resist the defendant's application for summary judgment.  What must be shown is an abuse of process of the kind explained in Packer v Meagher.  I am not satisfied that the defendant has established that this action, or the action in which damages are claimed, are an abuse in that sense.  This case is different from Major Motors Pty Ltd v Short [2004] WADC 164. In Major Motors the worker had a judgment against the employer and which destroyed the existence of his cause of action so long as the judgment stood.  No such judgment has been entered in this case.

4. I conclude therefore that the plaintiff is entitled to leave under s 93D and I dismiss this appeal.