| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : FRANCIS -v- THIESS PTY LTD & ANOR [2005] WADC 217 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 20 SEPTEMBER 2005 DELIVERED : 18 NOVEMBER 2005 FILE NO/S : CIV 553 of 2003 BETWEEN : KAREN FRANCIS Plaintiff
AND
THIESS PTY LTD
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
GEO GROUP AUSTRALIA PTY LTD (ACN 051 131 600)
Third Party
Catchwords: Practice Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for leave to amend pleading - Cause of action arose in South Australia - Applicability of Western Australian law to an action commenced in Western Australia upon such a cause
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Legislation:
Workers Compensation and Rehabilitation Act 1981
Wrongs Act 1936 (SA)
Result: Application dismissed Representation:
Counsel:
Plaintiff : Mr D M Bruns
First Defendant : Mr B A Winburn-Clarke
Second Defendant : Mr R R Cywicki
Third Party : No Appearance
Solicitors:
Plaintiff : Separovic & Associates
First Defendant : Srdarov Richards Burton
Second Defendant : Australian Government Solicitor
Third Party : Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: The plaintiff's claim is for damages for loss arising from personal injury. The cause of action expressed on the writ reveals that the plaintiff was injured at the second defendant's detention facility at Woomera in the State of South Australia. The second defendant has made its second application to amend the terms of its defence. It was unsuccessful on the first occasion as I was not satisfied that the onus has been discharged either in relation to the issue of leave or the terms of the proposed amendment. As to the terms of the proposed amendment, because it did reflect the result expressed by the High Court of Australia in John Pfeiffer Pty Ltd v Rodgerson [2000] HCA 36. The joint judgment in that case expressed that in determining the impact of the law of the forum two guiding principles would distinguish procedural from substantive matters. The first that litigants would take the procedures of a court in which they embark upon litigation as they find them. The second that matters that go to the existence, extent or enforceability of rights prima facie are substantive. That case establishes that the substantive law that would bear upon an action in tort is that of the jurisdiction in which the cause of action arose, not that in which litigation commenced upon it is undertaken.
2 Each of the now proposed substantive (in the sense significant) amendments draws upon the impact of the Workers' Compensation and Rehabilitation Act 1981. Under that Act the defendant would seek a determination that it was the plaintiff's deemed employer. The only impact of such a determination would accrue to the applicant a benefit in the event that the plaintiff succeeded in establishing her claim. That benefit, provided by s 93E, is that upon such a finding, prior to obtaining damages for any found loss, the plaintiff would be required to obtain a determination from a statutory body that her degree of disability exceeded a statutory threshold. 3 Consideration of the first of the two guiding principles expressed in Pfeiffer reveals the court would not consider the application of s 175 in the absence of a pleading. As to the second, a determination under s 175 would have an impact on the litigation of such significance that there could be no doubt that it was substantive. It follows that to the extent that the applicant also seeks to amend so as to rely upon s 93E it should not succeed. 4 The defendant next seeks to rely upon the terms of an agreement between the plaintiff and her employer whereby the plaintiff agreed to forfeit any entitlement to obtain damages at common law under s 93D of the Act. That statutory provision expresses the mechanism by which
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jurisdiction to award damages under s 93E would be regulated. The significance of the proposed pleading is that the effect of the agreement was that the plaintiff relinquished any entitlement to damages under the Act. Regardless of the characterisation of the agreement as forfeiture it was never open to the plaintiff to seek any determination under s 93D. In one sense the proposed pleading is benign, as it would have no consequence. The significance of that observation for present purposes is that it would raise a false issue. 5 The defendant also seeks to plead that by reason of that forfeiture, the plaintiff elected and is thereby bound by the Act. In my opinion the simple answer is that the plaintiff never had a choice of law. 6 Finally the defendant seeks to plead that the agreement either waived the plaintiff's entitlement to damages under the Wrongs Act 1936 (SA) or otherwise compromised her rights to pursue damages under that Act. There is nothing in the pleading to support either allegation. It seems to me that what is alleged does no more than establish a basis for the perception of conflict between the operation of the Western Australian Law and the South Australian Law. In my opinion on each of the points too the defendant has failed to recognise the significance of the result expressed by the High Court of Australia in Pfeiffer. 7 The applicant has not discharged the onus of persuading the court that it is appropriate to allow for the proposed pleading. It follows that for the same reasons as the defendant's first application failed this application too should fail. |