Gable v Steel Cap Recruitment Pty Ltd [No 2]
[2017] WADC 10
•13 JANUARY 2017
GABLE -v- STEEL CAP RECRUITMENT PTY LTD [No 2] [2017] WADC 10
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 10 | |
| Case No: | CIV:1864/2016 | 13 JANUARY 2017 | |
| Coram: | PARRY DCJ | 13/01/17 | |
| PERTH | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | DAMON GENE GABLE STEEL CAP RECRUITMENT PTY LTD |
Catchwords: | Appeal from registrar Practice and procedure Summary determination Strike out of proceeding Proceeding seeking damages for personal injury arising out of workplace accident Whether no serious question to be tried Conditions precedent to award of damages under s 93K(4) Workers' Compensation and Injury Management Act 1981 (WA) do not exist |
Legislation: | District Court Rules 2005 r 15, r 15(1), r 15(6) Magistrates Court (Civil Proceedings) Act 2004 (WA) s 17(1) Rules of the Supreme Court 1971 O 16 r 1 State Administrative Tribunal Act 2004 (WA) s 47 Workers' Compensation and Injury Management Act 1981 (WA) s 5(1), s 93K, s 93K(4), s 93K(4)(a), s 93K(4)(b), s 93K(4)(c) |
Case References: | Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Gable and Steel Cap Recruitment Pty Ltd [2016] WASAT 54 Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
STEEL CAP RECRUITMENT PTY LTD
Defendant
Catchwords:
Appeal from registrar - Practice and procedure - Summary determination - Strike out of proceeding - Proceeding seeking damages for personal injury arising out of workplace accident - Whether no serious question to be tried - Conditions precedent to award of damages under s 93K(4) Workers' Compensation and Injury Management Act 1981 (WA) do not exist
Legislation:
District Court Rules 2005 r 15, r 15(1), r 15(6)
Magistrates Court (Civil Proceedings) Act 2004 (WA) s 17(1)
Rules of the Supreme Court 1971 O 16 r 1
State Administrative Tribunal Act 2004 (WA) s 47
Workers' Compensation and Injury Management Act 1981 (WA) s 5(1), s 93K, s 93K(4), s 93K(4)(a), s 93K(4)(b), s 93K(4)(c)
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr C W Treasure
Solicitors:
Plaintiff : Not applicable
Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gable and Steel Cap Recruitment Pty Ltd [2016] WASAT 54
Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151
1 PARRY DCJ: (This judgment was delivered extemporaneously on 13 January 2017 and edited from transcript.)
Introduction
2 Mr Damon Gable appeals, pursuant to r 15(1) of the District Court Rules 2005 (DCR), from a decision of Deputy Registrar Hewitt made on 27 October 2016 in which the deputy registrar struck out Mr Gable's action against Steel Cap Recruitment Pty Ltd (Steel Cap), pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (RSC).
3 The deputy registrar published admirably succinct reasons, which nevertheless provide a comprehensive determination: see Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151.
Background
4 Steel Cap applied by chamber summons dated 8 August 2016 for summary judgment in the proceeding or alternatively for the striking out of Mr Gable's amended statement of claim. Steel Cap made those applications on the basis that it has a defence to the claim pursuant to s 93K of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act).
5 In the proceeding struck out by the deputy registrar, Mr Gable makes various, often incomprehensible claims against Steel Cap. However, it is clear to me, as it was to the deputy registrar, that in substance, Mr Gable seeks damages for personal injury allegedly sustained by him in the course of his employment with Steel Cap on 15 April 2014.
6 Mr Gable alleges that on that day, during the course of his employment with Steel Cap, he sustained a left hand injury when he was digging a trench and struck a cable as a result of which he was electrocuted to the left side of his body.
7 Mr Gable made a claim for workers' compensation the day after he says that he sustained the injury on 15 April 2014. Although Steel Cap's insurer accepted liability for the workplace injury, it appears that Mr Gable commenced employment on 21 April 2014 with a different employer and did not attend a medical appointment organised by the insurer on 22 April 2014.
8 On 9 May 2015, Mr Gable made an application for conciliation before the WorkCover Conciliation Service and sought the payment of medical expenses arising out of the workplace injury on 15 April 2014. Steel Cap's insurer arranged for Mr Gable to be reviewed by a medical practitioner in order to assess his injury and his capacity for work and in order to clarify whether Mr Gable's symptoms were caused by the workplace incident on 15 April 2014. Mr Gable did not attend that appointment.
9 On 9 December 2015, Mr Gable filed a second application for conciliation at the WorkCover Conciliation Service. Mr Gable failed to attend a further medical appointment on 11 February 2016.
10 On 29 February 2016, a conciliation officer issued a certificate of outcome stating that there were minimal prospects of agreement being reached and that the conciliation was at an end.
11 Mr Gable then commenced this proceeding in the District Court on 30 May 2016.
12 On 13 July 2016 Deputy Registrar Harman struck out the statement of claim filed on 30 May 2016.
13 Mr Gable then filed an amended statement of claim on 18 July 2016. In the amended statement of claim Mr Gable alleges that he suffered an injury on 15 April 2014 when he was employed by Steel Cap and seeks damages of $140,000 arising out of that injury.
14 Mr Gable has also commenced proceedings in the Magistrates Court and in the State Administrative Tribunal (SAT) concerning the workplace injury on 15 April 2014. The SAT proceeding was summarily dismissed on 18 May 2016, pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA), on the basis that SAT does not have jurisdiction: see Gable and Steel Cap Recruitment Pty Ltd [2016] WASAT 54.
15 The Magistrates Court proceeding was also summarily dismissed by the statement of minor case claim being struck out, pursuant to s 17(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
Legal Framework
16 Rule 15(1) DCR confers a right of appeal to a judge upon a party who is 'dissatisfied with a decision of a registrar'.
17 Rule 15(6) DCR states that:
The appeal is to be by way of a new hearing of the matter that was before the registrar.
18 In other words, an appeal under r 15 DCR involves a hearing de novo, that is, a fresh consideration of the matter that was before the registrar, or in this case the deputy registrar, on the basis of the evidence and submissions before the judge, which includes, but is not limited to, the evidence and submissions that were before the registrar.
19 Order 16 r 1(1) RSC states as follows:
Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order -
(a) that judgment be entered for the defendant with or without costs; or
(b) that the plaintiff shall proceed to trial without pleadings,
or if all parties consent, may dispose of the action finally and without appeal in a summary manner.
20 Although the appeal in this case is brought by Mr Gable, the onus of persuading the court in relation to the application before the court lies on Steel Cap. Steel Cap must persuade the court, on a balance of probabilities, that Mr Gable's action against it should be struck out on the basis that there is no serious question to be tried in the action.
21 In terms of evidence on the appeal, both parties rely on evidence that they filed and relied on before the deputy registrar. Mr Gable has filed and relies on three affidavits sworn on 15 August 2016, 17 August 2016 and 19 September 2016, a document entitled 'Defence (plaintiff)' dated 13 August 2016, as well as a large number of items of correspondence to the District Court. I have read all of that evidence.
22 Steel Cap relies on two affidavits sworn by its solicitor, Ms Thalia Tess Kailis, sworn on 8 August 2016 and 21 September 2016. I have read that evidence.
Disposition of appeal
23 Section 93K(4) of the WCIM Act states as follows:
Damages in respect of an injury can only be awarded if -
(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b) the Director registers the election in accordance with the regulations; and
(c) court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
24 The term 'injury' is defined in s 5(1) of the WCIM Act to include:
a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions [.]
25 The term 'worker' is defined in s 5(1) of the WCIM Act relevantly as:
[A]ny person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied, is oral or in writing.
26 The term 'employer' is defined in s 5(1) of the WCIM Act in a manner that preserves the ordinary meaning and adds to it.
27 It is plain that the action brought by Mr Gable against Steel Cap in the District Court seeks damages in respect of an 'injury' within the meaning of s 93K(4) of the WCIM Act.
28 Ms Wendy Attenborough, Director Conciliation of WorkCover WA states in a letter dated 20 September 2016 that there is no record of Mr Gable having elected to retain the right to seek damages and therefore, no election has been registered by the Director for the purposes of s 93K(4) of the WCIM Act.
29 Consequently, the conditions precedent to an award of damages in pars (a), (b) and (c) of that provision do not currently exist and therefore, as a matter of law, this court is precluded from awarding Mr Gable damages as he seeks in his amended statement of claim.
30 The power to order summary judgment should be exercised with great care and caution, and should never be exercised unless it is clear that there is no real question to be tried in the proceeding: see Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 92.
31 Furthermore, it is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of a proceeding should it go to trial, that summary judgment ought to be given: see Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 [46].
32 However, this is such a case. The action brought by Mr Gable in this court for damages for personal injury arising out of the workplace incident cannot succeed, because of s 93K(4)(a), s 93K(4)(b) and s 93K(4)(c) of the WCIM Act.
33 Mr Gable's action in this court seeking damages for personal injury arising out of the workplace incident is therefore bound to fail and should appropriately be summarily dismissed.
34 Mr Gable relies on a report in relation to a workplace injury he allegedly sustained in 1999. He has referred to that in submissions filed in the appeal and in documents before the deputy registrar. However, insofar as that report refers to the legal framework and the statutory framework, it relates to the period at the date of that report, which predates the insertion of s 93K(4) into the WCIM Act in 2004.
35 Mr Gable has also made various submissions to do with other legal bases for claims. Those matters do not relate to any of the pleadings in the amended statement of claim. They include matters such as the jurisdiction of the High Court of Australia to grant injunctions against officers of the Commonwealth, allegations of professional negligence against the insurer of Steel Cap, and alleged breaches of various statutes.
36 In particular, Mr Gable argues that there has been a breach by Steel Cap of occupational health and safety laws, including by failing to obtain or prepare or have available to him an incident report of the incident in which he was injured. That breach is not in fact pleaded in the amended statement of claim. However, if it were, it would also be a claim that is bound to fail and should be struck out on that basis. That is because the occupational health and safety laws that Mr Gable refers to do not confer a personal right to seek damages.
Conclusion
37 I am therefore satisfied by Steel Cap, on a balance of probabilities, that Mr Gable's action against it in this court must fail, and should be struck out.
38 Finally, I note that the deputy registrar made the final order of striking out the proceeding, rather than, strictly speaking, entering summary judgment against Mr Gable. The deputy registrar did so, it appears, for the reason that it might still be possible for Mr Gable to comply with s 93K(4), and in particular to make an election to retain the right to seek damages, for the election to be registered and for then another court proceeding to be brought for damages.
39 In making that observation I make no determination, nor do I express any view as to whether that would still be possible. But given that potential outcome, the deputy registrar considered it in the interests of justice not to enter summary judgment, but rather to strike out the proceeding. I agree that that is the just and appropriate outcome in this case.
Costs
40 I note that the respondent to the appeal makes an application for its costs of the appeal to be paid by Mr Gable. Mr Gable brought the appeal and has been unsuccessful in the appeal.
41 Costs generally follow the result in relation to such an appeal and there is no reason suggested by Mr Gable as to why I should not follow the general rule in relation to costs. It is appropriate, in my view, that the respondent to the appeal, which has had to attend today to argue its case, should be compensated for the costs that it has incurred.
Orders
42 For these reasons, I make the following orders:
1. The appeal is dismissed.
2. The decision made by Deputy Registrar Hewitt on 27 October 2016 to strike out this proceeding is affirmed.
3. The appellant/plaintiff is to pay the respondent/defendant's costs of the appeal as taxed if not agreed.
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