EIBHLIN Margaret Campbell as Administrator of the Estate of Colin Charles Campbell deceased v RGC Mineral Sands Ltd
[2000] WADC 294
•16 NOVEMBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: EIBHLIN MARGARET CAMPBELL as Administrator of the Estate of COLIN CHARLES CAMPBELL deceased -v- RGC MINERAL SANDS LTD [2000] WADC 294
CORAM: NISBET DCJ
HEARD: 19 OCTOBER 2000
DELIVERED : 16 NOVEMBER 2000
FILE NO/S: CIV 4407 of 1998
BETWEEN: EIBHLIN MARGARET CAMPBELL as Administrator of the Estate of COLIN CHARLES CAMPBELL deceased
Plaintiff
AND
RGC MINERAL SANDS LTD
Defendant
Catchwords:
Practice and procedure - Trial of preliminary issue - Whether finally disposes of action - Order 32 r 7 - Costs
Legislation:
Nil
Result:
Action permanently stayed
Representation:
Counsel:
Plaintiff: Mr P A Nevin
Defendant: Mr K S Pratt
Solicitors:
Plaintiff: Taylor Smart
Defendant: Civitella Smith
Case(s) referred to in judgment(s):
Visic v State Government Insurance Office (1990) 3 WAR 122
Case(s) also cited:
Nil
NISBET DCJ: On 21 July this year I delivered judgment on the trial of a preliminary issue raised by the defendant as to whether the plaintiff could succeed in obtaining an award of damages in respect of the plaintiff's claim against it (see [2000] WADC 183).
When I delivered judgment the parties reserved on their respective motions with a view to entering into discussions with each other to determine whether or not consensus could be reached on the form that judgment on the preliminary issue should take. Counsel for the defendant was of the view that as the plaintiff was unable to succeed in obtaining an award of damages then the whole action must fail and accordingly the plaintiff's claim against his client should be dismissed. Needless to say, counsel for the plaintiff was not convinced that this was the appropriate way to deal with the issue.
Having regard to the impasse between the parties I determined to treat the submission of counsel for the defendant as an oral motion to dismiss the plaintiff's claim pursuant to the powers conferred on a court determining a preliminary issue by O 32 r 7 and then directed that each party file and serve submissions directed to the issue of the proper disposition of the preliminary issue.
The defendant filed submissions which in essence urged me to dismiss the plaintiff's claim having regard to the fact that my finding effectively precluded the plaintiff from obtaining any relief. The plaintiff, on the other hand, pointing to my judgment and in particular to par 16 and par 18 thereof, submitted that as I was careful not to dismiss the plaintiff's claim holding that the estate may yet be able to perfect a claim in tort but simply not be able to obtain any damages in respect thereof, the proper resolution to the matter would be for me to stay the proceedings permanently and award the defendant the costs of the preliminary issue.
Certainly there are cases where the trial of the preliminary issue will finally dispose of the action. See for example Visic v State Government Insurance Office (1990) 3 WAR 122.
It seems to me however that where the estate's claims arise out of injuries to the late Mr Campbell which he claimed he sustained during the course of his employment with the defendant on 19 May 1993 and 24 October 1994, if I was to dismiss the estate's claim it would be forever statute barred. Where the only reason the plaintiff cannot succeed in obtaining an award of damages is because of an enactment of Parliament denying employees injured by their employers' negligence adequate redress at law, another Parliament, differently constituted, may very well repeal the relevant legislation and restore workers' entitlements. In such a circumstance the plaintiff's claim could be carried forward and tried in the ordinary way.
In the circumstances therefore my opinion is that the proper disposition of this matter is to order that the plaintiff's action be stayed until further order of the Court. The plaintiff is to pay the defendant's costs of the preliminary issue to be taxed (including any reserved costs in relation to the preliminary issue) with each party to have liberty to apply for any further or other orders required in respect of the taxation.
0
1
1