Gilroy v Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation
[2021] WADC 85
•10 SEPTEMBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GILROY -v- WESTERN DESERT NGANAMPA WALYTJA PALYANTJAKU TJUTAKU ABORIGINAL CORPORATION [2021] WADC 85
CORAM: WHITBY DCJ
HEARD: 16 AUGUST 2021
DELIVERED : 10 SEPTEMBER 2021
FILE NO/S: CIV 4151 of 2020
BETWEEN: PATRICIA MARGARET CECELIA GILROY
Plaintiff
AND
WESTERN DESERT NGANAMPA WALYTJA PALYANTJAKU TJUTAKU ABORIGINAL CORPORATION
First Defendant
CENTRAL AUSTRALIA HEALTH SERVICE
Second Defendant
NORTHERN TERRITORY DEPARTMENT OF HEALTH
Third Defendant
MINISTER FOR HEALTH (COMMONWEALTH)
Fourth Defendant
Catchwords:
Appeal from decision of registrar pursuant to r 15 of the District Court Rules 2005 (WA) - Application for stay of action pursuant to s 20(3) and s 20(4) of the Service and Execution of Process Act 1992 (Cth) - Whether the court of another state is the 'appropriate court' - Court with which the action has the most real and substantial connection - Court's discretion to order a stay
Legislation:
District Court Rules 2005 (WA)
Jurisdiction of Courts (Cross‑Vesting) Act 1987 (WA)
Service and Execution of Process Act 1992 (Cth)
Work Health and Safety (National Uniform Legislation) Act 2011 (NT)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| Plaintiff | : | Mr D J Mezger |
| First Defendant | : | No appearance |
| Second Defendant | : | Mr A A Nolan |
| Third Defendant | : | Mr A A Nolan |
| Fourth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| First Defendant | : | Moray & Agnew |
| Second Defendant | : | HWL Ebsworth Lawyers (Perth) |
| Third Defendant | : | HWL Ebsworth Lawyers (Perth) |
| Fourth Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Cheney v Moore [2020] WASC 227
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36
Kezic v St John of God Health Care Inc [2015] WASCA 220
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
Pacific Petroleum Corporation v Nauru Phosphate Corporation (Pacific Petroleum) [2002] QSC 389
Valkama v Jamieson [1994] 11 SR (WA) 246
Wigmans v AMP Ltd [2021] HCA 7
WHITBY DCJ:
This is an appeal from a decision of Principal Registrar Melville on 23 April 2021 staying this action pursuant to s 20(3) of the Service and Execution of Process Act 1992 (Cth) (SEPA). This appeal is made pursuant to r 15 of the District Court Rules 2005 (WA) (DCR).
Overview
Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation (first defendant) provides services to remote Indigenous communities in Western Australia and the Northern Territory.
Central Australia Health Service (second defendant) and Northern Territory Department of Health (third defendant) set up dialysis clinics in the Western Desert area in Central Australia, spanning across Western Australia, Northern Territory and South Australia. The dialysis clinics were established to treat the local indigenous population.
The Minister for Health (Commonwealth) (fourth defendant) is responsible for improving the provision of health services within the Northern Territory.
The second and third defendants engaged the first defendant to employ nurses to set up and work at the dialysis clinics.
From July 2015, Ms Patricia Gilroy, the plaintiff, was employed as a remote area nurse by the first defendant. Ms Gilroy worked with the Indigenous communities at dialysis clinics within Western Australia and the Northern Territory.
From October to December 2017, Ms Gilroy was working at Papunya in the Northern Territory. On 15 December 2017, Ms Gilroy says she was a victim of an assault at a dialysis clinic in Papunya in the Northern Territory.
After the assault, Ms Gilroy lodged a workers' compensation claim with the first defendant, in accordance with the laws of the Northern Territory.
Ms Gilroy says she was directed by the first defendant's insurers to lodge her claim in accordance with the laws of Western Australia. As a result, Ms Gilroy lodged a claim pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (WA Act). Since June 2018, the first defendant has made weekly payments to Ms Gilroy in accordance with the WA Act.
On 16 November 2020, Ms Gilroy commenced this action against the defendants claiming damages from the defendants for breaches of their common law duty of care and/or statutory duty of care pursuant to the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (NT Act).
On 22 December 2020, the second and third defendants each filed a conditional appearance. On 29 December 2020, the second and third defendants filed a chamber summons seeking an order that the action against the second and third defendants be stayed pursuant to s 20(3) of the SEPA.
On 23 April 2021, Principal Registrar Melville ordered that the action be stayed save for allowing an application to be made to remit the case to the Supreme Court of Western Australia and subject to any successful application in the Supreme Court of Western Australia for an order under the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) to transfer the action to a court of the Northern Territory.
The plaintiff appeals that order.
For the reasons that follow, I dismiss the appeal. In these reasons, I deal with the following matters:
(a)legal principles applicable to the appeal;
(b)the evidence;
(c)legal principles applicable to the stay of the action pursuant to s 20(3) of the SEPA;
(d)second and third defendants' submissions;
(e)plaintiff's submissions;
(f)determination; and
(g)summary and final orders.
Legal principles applicable to the appeal
Rule 15(6) of the DCR provides that an appeal from a registrar 'is to be by way of a new hearing of the matter that was before the registrar'.
A new hearing means that the judge hearing the appeal must treat the application as if it was before the court for the first time: Kezic v St John of God Health Care Inc [2015] WASCA 220 [42].
The plaintiff, as the party who has appealed, is not required to show that the registrar made an error in the decision the subject of the appeal: Cheney v Moore [2020] WASC 227 [9].
The court may rely upon additional evidence on the hearing of an appeal by way of a new hearing, subject to the court having a discretion to exclude such evidence: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28.
In essence, I am required to determine the second and third defendants' chamber summons for stay of the action afresh, having regard to all the evidence that was before the learned principal registrar, together with any additional evidence relied upon by the parties on the appeal.
The evidence
The second and third defendants are seeking orders that:
(a)the plaintiff's action against the second and third defendants be stayed pursuant to s 20(3) of the SEPA; or
(b)alternatively, pursuant to O 20 r 19(1)(d) of the Rules of the Supreme Court 1971 (WA) (RSC), the indorsement to the plaintiff's writ of summons be struck out as against the second and third defendants on the grounds that it is an abuse of process of the court.
The second and third defendants rely upon the following in support of the chamber summons:
(a)Affidavit of Natasha Elise Burn sworn on 10 February 2021 (First Burn Affidavit);
(b)Affidavit of Natasha Elise Burn sworn on 15 February 2021 (Second Burn Affidavit);
(c)Outline of submissions dated 10 March 2021; and
(d)Outline of submissions dated 11 August 2021.
The plaintiff relies upon the following in opposition to the chamber summons:
(a)Bundle of documents handed up to court on 16 August 2021 (Bundle of Documents);
(b)Outline of submissions dated 15 March 2021; and
(c)Outline of submissions dated 11 August 2021.
Legal principles application to the stay of the action pursuant to s 20(3) of the SEPA
Section 20(3) and s 20(4) of the SEPA provide:
(3)The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
(4)The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:
(a)the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
(b)the place where the subject matter of the proceeding is situated; and
(c)the financial circumstances of the parties, so far as the court is aware of them; and
(d)any agreement between the parties about the court or place in which the proceeding should be instituted; and
(e)the law that would be most appropriate to apply in the proceeding; and
(f)whether a related or similar proceeding has been commenced against the person served or another person;
but do not include the fact that the proceeding was commenced in the place of issue.
The fact that the action was commenced in Western Australia is not a factor to be taken into account in determining whether a court of another State is an appropriate court: s 20(4) of the SEPA.
This court considered the operation of s 20(3) and s 20(4) of the SEPA in Valkama v Jamieson [1994] 11 SR (WA) 246 (Valkama). Blaxell DCJ, at (250), said that s 20 of the SEPA required a two-stage enquiry to be conducted:
(a)first, is the court of another State the 'appropriate court', that is the court with which the action has the most real and substantial connection, to determine the matters in issue?
(b)second, should the court exercise its discretion to order a stay?
Second and third defendants' submissions
The second and third defendants submit that the action should be stayed on the basis that a court of the Northern Territory is the appropriate forum because:
(a)the second and third defendants' main places of business are in the Northern Territory;[1]
(b)the witnesses likely to be called reside in the Northern Territory;[2]
(c)the alleged assault occurred in the Northern Territory;
(d)in relation to the plaintiff's claim for damages for breach of common law duty of care, the law that applies is the law of the place where the alleged tort occurred: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36;
(e)in relation to the plaintiff's claims for damages for breach of statutory duty of care, the duties pleaded are under Northern Territory statutes; and
(f)there is no nexus between the plaintiff's case and Western Australia.
[1] First Burn affidavit, pars 6 - 7.
[2] Second Burn affidavit, par 7.
Plaintiff's submissions
The plaintiff accepts that the 'starting position' is that the law of the Northern Territory applies to this action and that the appropriate court is a court of the Northern Territory.
The plaintiff submits that this action is an exception to the starting position and the court should not exercise its discretion under s 20(3) of the SEPA to order a stay of the action because:
(a)the plaintiff was predominantly employed in Western Australia;
(b)the first defendant accepted the plaintiff's workers' compensation claim pursuant to the WA Act;[3]
(c)the plaintiff may be able to obtain judgment against the first defendant in the Northern Territory without regard being had to the constraints imposed on recovery in the WA Act which may potentially unjustly enrich the plaintiff;
(d) it would be abuse of process for the plaintiff to have commenced proceedings against the first defendant in the Northern Territory; and
(e) it would also be an abuse of process for the plaintiff to commence two separate actions in respect of the one injury: Wigmans v AMP Ltd [2021] HCA 7 [95] - [106]; and
(f)commencing proceedings in WA was the only appropriate option available to the plaintiff.
[3] Bundle of Documents - GIO Form 3A dated 19 June 2018.
The plaintiff submits that the onus is on the second and third defendants to demonstrate that the District Court of Western Australia is so inappropriate a forum that the continuation of these proceedings would be oppressive and vexatious to them. The plaintiff relies upon the cases of Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 (Oceanic) and Pacific Petroleum Corporation v Nauru Phosphate Corporation (Pacific Petroleum) [2002] QSC 389. The plaintiff says that the second and third defendants have not discharged this onus.
Determination
I must adopt the two-stage approach outlined in Valkama. The first issue for determination in the two‑stage approach is what is the 'appropriate court' to determine the matters in issue. This issue must be determined having regard to the non‑exhaustive list of factors set out in s 20(4) of the SEPA.
The question is not whether the District Court of Western Australia is an 'inappropriate forum'. The cases of Oceanic and Pacific Petroleum are not cases decided pursuant to the provisions of SEPA, they were decided having regard to common law principles. Of course, there is overlap between the common law principles with those to be applied under SEPA. It may well be that, if another court is determined to be the appropriate court, it is also the case that the court in which the proceedings were commenced is an inappropriate forum. However, that may not always be the case.
The 'appropriate court' to determine the matters in issue is the court with which the action has the most real and substantial connection.
In my view, a court of the Northern Territory is clearly the court with which this action has the most real and substantial connection for the following reasons:
(a)given the plaintiff claims damages for breach of a common law duty of care, the law that applies is the law of the state in which the alleged tort occurred;
(b)the alleged assault occurred in the Northern Territory;
(c)the plaintiff is also claiming damages for breach of Northern Territory statutory duties;
(d)it is not relevant to the causes of action that the plaintiff worked predominantly in Western Australia or that the first defendant accepted the plaintiff's workers' compensation claim pursuant to the WA Act;
(e)the second and third defendants' main places of business are in the Northern Territory; and
(f)the witness likely to be called reside in the Northern Territory.
Further, I find that there is no connecting factor which can in any way make the District Court of Western Australia the 'appropriate court' to hear this action for the following reasons:
(a)even if the plaintiff predominantly worked in WA, she was not working in WA when the alleged assault occurred;
(b)the payment of workers' compensation benefits to the plaintiff by the first defendant pursuant to the WA Act does not constitute related proceedings for the purposes of s 20(4)(f) of the SEPA; and
(c)a Northern Territory court is not prevented from determining the claim against and the defence by the first defendant in accordance with any limitation provisions in the WA Act.
In summary, there is simply no nexus between the action and Western Australia. The appropriate court is a court of the Northern Territory.
Having determined that a Northern Territory court is the appropriate court to determine the action, the second stage of the enquiry to be determined is whether the court should exercise its discretion to grant a stay.
The sole reason that the plaintiff submits that a stay should not be granted is that the first defendant has directed the plaintiff to apply for workers' compensation pursuant to the WA Act and has accepted the application of the law of Western Australia by pleading provisions of the WA Act in its defence. The plaintiff says she has relied upon this direction and acceptance by the first defendant in commencing this action. The plaintiff says it is unjust to order a stay in these circumstances.
I do not agree. The appropriate court is clearly a Northern Territory court. There is no nexus between the action and the District Court of Western Australia. The first defendant neither consents to, nor opposes, a stay of the proceedings. A Northern Territory court can determine the claim against the first defendant in accordance with the WA Act if appropriate. It is not for me, upon this application, to determine a conflict of laws or choice of law argument. That is for a judge to determine at trial. In my view, there is no compelling reason against the granting of a stay of the action pursuant to s 20 of the SEPA.
Further, it is not appropriate to make orders for a stay of the action only against the second and third defendants. There is no application before me to separate the proceedings and, in any event, both parties accept that it would be an abuse of process for two separate proceedings in relation to the same subject matter to be commenced.
Summary and final orders
The appeal against the orders of Principal Registrar Melville is dismissed.
I will hear the parties as to final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CB
Associate to her Honour Judge Whitby
10 SEPTEMBER 2021
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