Gibson v. Mount Isa Mines Ltd

[2004] QSC 71

[2004] QSC 071

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

FRYBERG J

No S9020 of 2001

BRIAN DAVID GIBSON  Plaintiff

and

MOUNT ISA MINES LIMITED
(ACN 004 661 447)  First Defendant

and

SUMISHO COAL AUSTRALIA PTY LIMITED
(ACN 061 524 249)  Second Defendant

and

ITOCHU COAL RESOURCES AUSTRALIA PTY LTD
(ACN 072 596 733)  Third Defendant

and

OAKY CREEK COAL PTY LTD
(ACN 010 202 936)  Fourth Defendant

BRISBANE

..16/03/2004

ORDER

HIS HONOUR:  This is an application by the defendants, for leave to issue a third party notice, in respect of the plaintiff's claim.

The plaintiff has claimed against four mining companies for damages for personal injuries.  He says in his statement of claim, that these injuries occurred at a time while he was acting in the course of his employment by the proposed third party.  However, he has not sued that party.

The four defendants wish to claim damages, contribution, indemnity, interest and costs, against the third party employer.

The application was not served on the third party, but a copy of it was provided to the third party and it seems to WorkCover, Queensland.

The application was proposed to be determined without an oral hearing.  The only parties to it, as I have said, were the defendants, who were the applicants and the plaintiff, who was duly served with it.

Notwithstanding that it was not a party, on the 4th of March, WorkCover filed a notice requiring an oral hearing of the application.  That notice has, apparently, resulted in the matter not being determined on the papers, but rather being listed in the applications' jurisdiction today.

When the matter was called on, there were appearances for the parties and in addition, Ms Hauff appeared for the third party and Mr North, SC, for WorkCover, Queensland.  Neither party objected to these appearances.  I am, however, far from convinced, that either of these parties has any right to appear on this application.  Since no point is taken by the plaintiff or the defendants, I do not propose to resolve that issue.

The proposed third party made no submissions and informed me that it would abide the decision of the Court.  The plaintiff did not oppose the grant of leave, but stressed that he was keen to see the action progressed and anxious that there be directions given to ensure that the proceedings were not unduly delayed.

The grant of leave was opposed by WorkCover. Leave was necessary because the defendants did not issue a third party notice within the time prescribed by the Uniform Civil Procedure Rules.

Had that occurred, of course, there would have been no application of the nature of today's application, at least not at this stage.  It may have been that an application would be made at a later stage, to achieve some form of relief along

the lines of the submissions made on behalf of WorkCover, but that must be speculative.

For the applicant, Mr Morton submitted that the case was a plain one.  The plaintiff's claim undoubtedly existed; the third party was a person against whom the defendants had claims and those were claims which fell within Rule 192 of the Uniform Procedure Rules.  The defendants wished to have the matters determined.

...

HIS HONOUR: On behalf of WorkCover, Mr North submitted that the appropriate method of proceeding would be to allow the notice to issue only on the basis that it covered a claim in respect of contribution or indemnity under the Law Reform Act 1995 and not in respect of the alternative claim raised by the defendants in contract against the third party.

The basis for that submission was varied and included, as I understood it, again, first, the proposition that, as a matter of law the claim did not - I am sorry - the contract claim did not fall within rule 192 and, therefore, could not be the subject of a third party notice and, second, that if it did, then significant practical difficulties would arise which would mean that I ought to exercise a discretion to exclude part of the cause of action.

Mr Morton drew my attention to rule 68 in that context.  Rule 192 sets out the conditions which permit a defendant to file a third party notice.  It does not, as I understand the rule, at least in terms, limit the content of a third party notice once the threshold of rule 192 is crossed.  What may be joined in proceedings once that threshold is crossed, is governed by the joinder rules.

It seems to me that the present proposed claim by the defendants falls within at least paragraph (a) and paragraph (c) of rule 192. That is not only because, as I think it is common ground, the claim under the Law Reform Act falls
thereunder, but also, in my view, so does the contractual claim, at least to the extent that the damages claimable in it will include the damages payable by the defendants to the plaintiff.  I reject the submission that the case is not covered by rule 192. 

As to the practical difficulties, Mr North submitted, first, that a claim in contract would take longer to get ready for trial than the claim for the indemnity.  He informed me from the Bar table, though there is no evidence to this effect, that WorkCover had previously investigated the matter and would not require any significant further time to carry out investigations if it were defending proceedings on behalf of the proposed third party; whereas if the two claims are proceeding together, there were issues which, it would be likely, would require discovery and investigation by the third party.

I accept that this is so, at least to some extent.  The contract claim will require pleading in a more elaborate way than would be required were it not there, but it does not seem to me that it is of such complexity that this ought to unduly lengthen proceedings.  It also will require an enlarged ambit of disclosure of documents.  Again, it does not seem to me that that is a particularly important factor when one considers the huge cost savings to the defendants in having the proceedings heard together, assuming, of course, that they ever get to trial and do not settle in the meantime.

It is significant in this context that the third party, itself, which has the responsibility of defending the contract claim, if it is to be defended, did not submit that it would be inconvenienced by the course proposed by the defendants and did not suggest that there would be any need for prolonged delay in the hearing.

The second practical point raised on behalf of WorkCover was that the claim in contract against the third party has a different measure of damages from the claim made for contribution and indemnity.  At least in theory that appears to be so.  However, the largest part of the claim will be constituted by any damages payable to the plaintiff.

Mr North made the point that until the proceedings in respect of the indemnity or contribution are resolved, the defendants will be unable fully to quantify their contractual damages.  That might also be so and it may well prove a problem for the defendants as against the third party.  If it does, then it is a problem that they have brought upon their own heads by the course they adopt.  Obviously it is a problem which they are prepared to accept and it may well be that the amount of money at stake is so small that they are prepared to forfeit it.  Though the solicitude which WorkCover obviously feels for the defendants in raising this point is touching, it does not seem to me that it is a matter which need prevent the course which the applicants propose from being adopted.

The third practical difficulty suggested on behalf of WorkCover was that, if the matters are heard together, the judge hearing the trial will have to apportion damages as between those caused by psychiatric injury and those caused by physical injury.  That, he told me, is because the plaintiff notified WorkCover of his claim in respect of physical injuries, but not in respect of psychiatric injuries.

Apparently, according to what I was told from the Bar table, the matter progressed to the point where it can be said that the plaintiff could have sued his employer.  In other words the employer is a person who would, if sued, have been liable to the plaintiff, but, submitted WorkCover, only in respect of physical injury.  It submitted that because of some of the peculiarities of the WorkCover Legislation, no cause of action existed in respect of psychiatric injury, or perhaps putting it another way, the damages claimable for the physical injury did not extend to psychiatric injury.

No evidence was led detailing exactly what the history of the matter was in this regard and the consequence has been an incapacity to examine the legislation in detail to demonstrate that it is correct.  However, even assuming it is correct, it does not seem to me that the point is a reason not to allow the application.  If it is correct, then at some point in time the damages payable by the defendants to the plaintiff will have to be dissected.

If it is to be done in two separate trials the cost of doing so will be greater than if it is done in the course of a single trial.  I do not think that the need to dissect the damages in the way suggested constitutes a sufficient reason or indeed any reason to refuse the application.

Finally it was submitted that granting the application would turn the case from a two to three day personal injuries one between plaintiff and defendants into a case managed case between plaintiff, defendants and third party. 

Quite why the prospect of the case becoming case managed should be regarded with such horror was not apparent to me.  In a broad sense I would, as I have said, accept that allowing the case to proceed in the manner proposed by the defendants will to some extent increase its complexity, will to some extent delay the hearing and will to some extent open up potential difficulties at trial.  But they are no more than potential. 

WorkCover has not placed before me, nor has the third party, any material indicating what issues would be in dispute as between the third party and the defendant and what issues as between the plaintiff and the defendants would be in dispute as between the defendants and the third party. 

In the absence of evidence that there are likely to be significant differential disputes I see no reason to assume that the proceedings on behalf of the third party could not be conducted by one firm of solicitors and could not be efficiently run in the interests of both WorkCover and the third party: Groom v Crocker [1939] 1 KB 194. The case for WorkCover does not in my view demonstrate any reason why leave should be refused.

In the circumstances therefore I propose to make the orders sought in paragraph 1 of the application.  It will be necessary to make directions for the further conduct of the matter.  I would ask legal representatives to confer over lunch hour with a view to reaching agreed directions as far as possible.  Obviously there will be a need for directions regarding pleadings and I assume that other matters will need to be covered.

I will deal with directions and with costs after the break.

...

HIS HONOUR:  Mr North has kindly drawn my attention to the fact that I had overlooked in making a statement that there was no evidence as to the ambit of the injury, Exhibit EHZ9 and EHZ10 and he is quite correct, I had.  Those documents do show that a claim had been submitted to WorkCover and that it covered the ankle injury and not a psychiatric injury.  It is demonstrated that the matter progressed at least to the stage of a settlement conference but it is not demonstrated how far after that it progressed if anywhere.

I do not think that that really makes a significant difference save that it does demonstrate a factual basis for the point which was made about the two different types of injuries.  As will be seen from my reasons already given I ultimately did not proceed on an evidentiary basis but rather on the fact that the distinction would have to be drawn between the two types of injuries in some way or another at some stage in any event.

...

HIS HONOUR:  The plaintiff seeks an order that the defendants and WorkCover pay its costs of the application assessed on an indemnity basis.  The material does not in my view show any foundation for assessing those costs on such a basis.  It does show, I think, an entitlement for costs in the plaintiff as the proceedings have been rendered necessary only because the defendants did not issue their third party notice in a timely way.  It therefore seems to me that the defendants should pay the plaintiff's costs of the application to be assessed.

The plaintiff also seeks an order that WorkCover pay those costs.  I will deal with that part of the application shortly. The defendants seek an order that WorkCover pay their costs to the extent that those costs have been increased by reason of the filing by WorkCover of the notice requiring an oral hearing.  In my view that application is well founded.  The correspondence discloses that had WorkCover not intervened the parties would in all probability have reached agreement that leave should be granted and that costs be reserved without the need for any oral hearing and perhaps without much controversy, without much cost in the way of written submissions. 

In the circumstances it seems to me that WorkCover should pay the defendant's costs of the application to the extent that those costs have been increased by reason of the need for an oral application.  The costs so described should include so much of the costs of the plaintiff payable by the defendants as fall within the description just enunciated, that is additional costs as described. 

There should also be an order that WorkCover pay those costs to the plaintiff.  That may short-circuit the need to proceed through the defendants. 

The third party has sought an order that its costs be its costs in the proceedings.  No-one has opposed that order and I am content to make it.

The orders will therefore be:-

1. Order in accordance with paragraph 1 of the application.

2. Order in accordance with the draft initialled by me and placed with the papers.

3. Costs orders as I have just described.

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