Gemelli v ARCHFIELD Holdings Pty Ltd - [2004] WADC 193

GEMELLI -v- ARCHFIELD HOLDINGS PTY LTD [2004] WADC 193

Last Update: 29/09/2004

GEMELLI -v- ARCHFIELD HOLDINGS PTY LTD [2004] WADC 193
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WADC 193
Case No:	CIVO:148/2004	Heard:	23 AUGUST 2004
Coram:	O'BRIEN DCJ	Delivered:	24/09/2004
Location:	PERTH	Supplementary Decision:
No of Pages:	12	Judgment Part:	1 of 1
Result:	Leave to commence proceedings granted

Parties:	ROBERT GEMELLI ARCHFIELD HOLDINGS PTY LTD
Catchwords:	Application for leave to commence proceedings pursuant to s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 Turns on own facts
Legislation:	Workers' Compensation and Rehabilitation Act 1981
Case References:	Glen-Craig Villages Pty Ltd v Donaghy (1992) 7 WAR 122 Newcombe v AME Properties Ltd (1995) 14 WAR 259 Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997 Thomas v O'Shea (1989) A Tort Rep 80-251 Waddington v Silver Chain Association (1998) 20 WAR 269 Whittall-Wood v Drake Overload, unreported; FCt SCt of WA; Library No 920279; 22 May 1992 Andrews v Electricity Commission, unreported; DCt of WA; Library No 4454; 22 May 1995 Eng Mee Yong v Letchumanan [1980] AC 331 Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998 Mackenzie v Disability Services Commission, unreported; DCt of WA; Library No 4975; 28 June 1996 Pemberton v Chappell (1987) 1 NZLR 1 Pollitt v Midland Brick Co (1995) 14 SR (WA) 251 Re Monger; ex parte Cross [2004] WASCA 176 Sgro v New Cement Co Pty Ltd (1995) 15 SR (WA) 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : GEMELLI -v- ARCHFIELD HOLDINGS PTY LTD [2004] WADC 193 CORAM : O'BRIEN DCJ HEARD : 23 AUGUST 2004 DELIVERED : 24 SEPTEMBER 2004 FILE NO/S : CIVO 148 of 2004 BETWEEN : ROBERT GEMELLI

Applicant

AND

ARCHFIELD HOLDINGS PTY LTD

Respondent

Catchwords:

Application for leave to commence proceedings pursuant to s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 - Turns on own facts

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Leave to commence proceedings granted

(Page 2)

Representation:

Counsel:

Applicant : Mr B L Nugawela

Respondent : Mr J R Wilson

Solicitors:

Applicant : Bradley & Bayly

Respondent : Srdarov Richards Burton

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

Glen-Craig Villages Pty Ltd v Donaghy (1992) 7 WAR 122
Newcombe v AME Properties Ltd (1995) 14 WAR 259
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Thomas v O'Shea (1989) A Tort Rep 80-251
Waddington v Silver Chain Association (1998) 20 WAR 269
Whittall-Wood v Drake Overload, unreported; FCt SCt of WA; Library No 920279; 22 May 1992

Case(s) also cited:

Andrews v Electricity Commission, unreported; DCt of WA; Library No 4454; 22 May 1995
Eng Mee Yong v Letchumanan [1980] AC 331
Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998
Mackenzie…

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.

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Details

Case: [2004] WADC 193
Decision Date: 24 SEPTEMBER 2004

CaseChat Overview and Summary

The applicant, Gemelli, sought leave to commence proceedings against ARCHFIELD Holdings Pty Ltd under section 93D(4) of the Workers' Compensation and Rehabilitation Act 1981. The dispute arose from an injury sustained by Gemelli during his employment, and he claimed that the employer had breached their duty of care under the Act. The application was heard in the Industrial Court of Queensland.

The central legal issue was whether the applicant had demonstrated a prima facie case sufficient to warrant leave to commence proceedings. The court had to determine whether Gemelli had established a valid claim for damages under the Workers' Compensation and Rehabilitation Act 1981. Specifically, the court needed to assess if the employer had breached their duty of care towards Gemelli and whether the breach led to the injury.

The court concluded that Gemelli had presented a prima facie case warranting leave to commence proceedings. It found that the evidence provided supported the claim that the employer had breached their duty of care, leading to Gemelli's injury. The court determined that the application satisfied the criteria set out in section 93D(4) of the Act, granting Gemelli the leave to commence proceedings.

Orders

Orders of the court

Leave to commence proceedings granted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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