| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GIBSON -v- TREACY & ORS [2002] WADC 85 CORAM : REGISTRAR KINGSLEY HEARD : 4 APRIL 2002 DELIVERED : 2 MAY 2002 FILE NO/S : CIV 1006 of 1999 BETWEEN : DERICK JOHN GIBSON Plaintiff
AND
ANDREW TREACY
First Defendant
GRAHAM McGREE
Second Defendant
AWP CONTRACTORS PTY LTD
Third Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
First Third Party
SGIO INSURANCE LTD
Second Third Party
(Page 2)
Catchwords:
Practice - application to strike statement of claim - Joinder of parties - Consequences of amendment and the time an amendment operates - Workers' Compensation legislation
Legislation: Interpretation Act 1984
Motor Vehicle (Third Party Insurance) Act 1943
Workers' Compensation and Rehabilitation Act 1981
Result: Application allowed Representation:
Counsel:
Plaintiff : Mr K Robson
First Defendant : Mr P Lansell
Second Defendant : No appearance
Third Defendant : Mr P Lansell
First Third Party : No appearance
Second Third Party : No appearance
Solicitors:
Plaintiff : Slee Anderson & Pidgeon
First Defendant : Jackson McDonald
Second Defendant : Talbot & Olivier
Third Defendant : Jackson McDonald
First Third Party : Talbot & Olivier
Second Third Party : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Baldry v Jackson [1976] 2 NSW LR 415
Ketteman v Hansel Properties Ltd [1987] AC 189
Musgrove v Minister for Transport [2000] WASCA 232
Sneade v Wotherton Barytes & Lead Mining Company Ltd [1904] 1 KB 295
(Page 3)
Templeton v Hamersley Iron Pty Ltd [2001] WASCA 179
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131
Case(s) also cited:
Nil
(Page 4)
1 REGISTRAR KINGSLEY: The first and third defendants have brought an application by a minute of further amended chamber summons dated 3 April 2002 for various orders. Paragraph 1 of the amended chamber summons seeks that sub-pars 9(a), (b), (c) and (g) and the first sub-par of 10(c), the plaintiff's substituted statement of claim, be struck out. Alternatively sub-pars 9(a), (b), (c) and (d), sub-par 9(g), sub-pars 10(a), (b) and (c) and par 11 of the plaintiff's substituted statement of claim against the first defendant and third defendant be stayed until further order. Alternatively, the plaintiff's claim against the first defendant and third defendant be struck out on the grounds that the proceedings were commenced in 1999 without leave pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). The chamber summons goes on to further seek orders that, save to the extent the plaintiff's claim is for damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies, the claim be struck out, or alternatively, by reason of s 93B4, s 93C and s 93D4 of the Act, the plaintiff's claim against the third defendant be struck out in any event.
2 On the plaintiff's substituted statement of claim the plaintiff pleads that at all material times he was employed as a plant operator by the third defendant, AWP Contractors Pty Ltd. The plaintiff, first defendant (Treacy) and second defendant (McGree) were also employed by AWP Contractors. On 9 December 1994 the plaintiff was required, during the course of his employment, to drive a digger machine onto the rear of a truck for the purposes of transporting the digger to a separate area within the mine site. The plaintiff remained seated in the digger machine as the truck driven by Treacy moved away. The truck became bogged. Treacy hitched a steel cable to the front of the truck and to the rear of a bulldozer. In an attempt to move the truck Treacy drove the bulldozer whilst McGree drove the truck. As the truck began to move the digger machine, in which the plaintiff was still a passenger, fell from the truck and the plaintiff was injured. At all times the truck was owned by AWP Contractors Pty Ltd. 3 At par 9 of the substituted statement of claim the plaintiff particularises the negligence of the third defendant and at par 10 particularises the negligence of the first and second defendants. At par 9, sub-pars (a), (b), (c), (d) and (g) clearly relate to the capacity of the third defendant as employer. Sub-pars (e) and (f) of par 9 appear to relate to the capacity of the third defendant as owner of a motor vehicle registered for the purposes of the Motor Vehicle (Third Party Insurance) Act. In relation to the particulars as against the first defendant sub-pars (a), (b) and (c) would appear to relate to the vicarious liability by the third
(Page 5)
defendant for its employees and sub-par (a) where second mentioned would appear to relate to the vicarious liability of the third defendant for the negligence of the second defendant. 4 The action was commenced in March 1999 against Treacy only. The allegations then were that Treacy drove the truck in such a negligent manner that the digger in which the plaintiff was still a passenger fell from the rear of the truck. The defendant in September 1999 filed a memorandum of appearance, though the defendant is stated to be AWP Contractors Pty Ltd. A defence is filed by that defendant. By May 2000 there is an amended defence showing Andrew Treacy as the defendant. The cause of action pleaded related to the negligent driving of the truck. 5 By a chamber summons filed 21 July 2000 and heard 3 November 2000 the plaintiff substituted and amended the statement of claim and it is this substituted statement of claim that is objected to. 6 The general rule is that an amendment of a document operates from the date of the document. The document is treated as containing the amendment from the start. Thus upon an amendment to the claim indorsed on the writ being allowed, "the writ as amended becomes the origin of the action and the claim thereupon indorsed is substituted for the claim originally indorsed" (Sneade v Wotherton Barytes & Lead Mining Company Ltd [1904] 1 KB 295 at 297. In Baldry v Jackson [1976] 2 NSW LR 415 Glass J A at 419 referring to Sneade's case commented that an amendment duly made takes effect not from the date when the amendment is made but from the date of the original document which it amends. 7 However the rule that an amendment of a document takes effect from the date of the original document is confined to a document in proceedings between continuing parties. The rule has no application to an amendment giving effect to the addition or substitution of a person as a defendant (see Ketteman v Hansel Properties Ltd [1987] AC 189). 8 The plaintiff's writ was issued on 12 March 1999. On 21 July 2000 the plaintiff applied for general leave to amend the writ and to join the second and third defendants. On 12 September 2000 the orders were made joining McGree and AWP Contractors Pty Ltd as defendants. On 3 November 2000 orders were made for substitution of the statement of claim.
(Page 6)
9 Prior to 5 October 1999 a worker intending to claim damages from his employer, or from a person for whom the employer was vicariously liable, was required to apply for leave to commence the action (s 93D of the Act). Subsequent to 5 October 1999, Pt IV Div 2 of the Act, into which s 93D falls, was amended to provide that a plaintiff was not entitled to damages unless he was able to establish a disability of not less than 30 per cent pursuant to s 93E(3)(a) of the Act.
10 In July 2000, on the plaintiff's application to generally amend the writ and substitute the statement of claim, the amendments sought as against Treacy broadened the cause of action from one involving the driving of a truck to one involving an employment relationship. At the same time AWP Contractors Pty Ltd, the employer of Gibson, was joined and allegations were made in negligence arising from the employment relationship. 11 Having regard to the authorities relating to amendment and relation back, the amendments made in July 2000 in relation to Treacy would relate back to the original writ and indorsed statement of claim, namely March 1998, whilst the cause against the employer dates from the joinder, namely September 2000. 12 In relation to the plaintiff's action against Treacy, as the amendment to the pleadings raising the employment issue relates back to the original writ, then leave pursuant to s 93D was required. As that leave has not been obtained it is my opinion that the plaintiff's cause of action, insofar as it relates to the employment issues, cannot now be maintained as against Treacy. 13 As for the action against the employer, that action dates from September 2000. Whilst the action is maintainable, a court cannot award damages where there has been no disability assessment. As this matter has been entered for trial, in my opinion it is appropriate that the action be stayed as against the employer until the disability assessment has been made. This is because the matter having now been entered for trial there will be considerably increased costs on both the plaintiff and defendant to further pursue the matter. Unless and until the disability assessment has been made those costs may well be wasted. 14 The plaintiff had brought an application dated 10 August 1998 pursuant to s 93D of the Act seeking leave to bring an action against the employer. I am informed from the bar table that the originating summons
(Page 7)
has not progressed further than a memorandum of appearance being entered. 15 In my opinion the authorities of Musgrove v Minister for Transport [2000] WASCA 232 and Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131 offer no comfort to the plaintiff. 16 In Musgrove's case leave to commence proceedings pursuant to s 93D of the Act had been refused by a District Court Judge on 9 July 1999, that is prior to the coming into operation of the amending Act on 5 October 1999. The worker appealed and by a majority the Full Court held that the leave to proceed was wrongly refused and, notwithstanding the Full Court decision was delivered on 28 August 2000, gave leave to proceed with the action. Ipp J commented that if the 5 October 1999 amendments to the Act were to deprive an appellant the right to appeal against a decision of the District Court, then the intention of Parliament to that effect would have to be very clear. In Musgrove's case the District Court Judge had made a decision on the facts before them. 17 In Toolan a District Court Judge refused leave on 20 May 1999. The appellant had lodged an appeal prior to 5 October 1999. The Justices in Toolan'scase considered carefully the operation of s 37(1)(c) Interpretation Act 1984. S 37 of the Interpretation Act provides for general savings on repeal of legislation. S 37(1)(c) refers to preservation of any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal. 18 In Toolan's case the appellant had appealed the adverse decision and, absence any contrary legislative intention, s 37(1)(c) Interpretation Act preserved the appellant's rights and those rights were not affected by the repeal on 5 October 1999. As Parker J commented at [62] in Toolan "… the issue involves the drawing of fine distinctions". 19 However, in Templeton v Hamersley Iron Pty Ltd [2001] WASCA 179, the appellant had filed an originating summons in July 1999. In September 1999 the appellant requested a hearing and the matter was listed for hearing on 21 October 1999. The originating summons was dismissed. On appeal Scott J, after reciting the history and reasoning of Musgrove and Toolan,states at [30]: "The appellants, not having their applications determined prior to 5 October 1999, are precluded from obtaining leave notwithstanding the provisions of s 37(1) of the Interpretation
(Page 8)
Act, which would not have the effect of preserving their position even though applications for leave were lodged before that date." 20 I am of the opinion that the fact there is an originating summons under s 93D, filed but not heard, does not assist the plaintiff, as no rights have been preserved. 21 I will hear from counsel as to the form of orders and/or costs.
|