Gilroy v Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation - [2021] WADC 38

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GILROY -v- WESTERN DESERT NGANAMPA WALYTJA PALYANTJAKU TJUTAKU ABORIGINAL CORPORATION [2021] WADC 38
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   22 MARCH & 20 APRIL 2021
DELIVERED          :   23 APRIL 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:

Application for stay of proceedings - Service and Execution of Process Act 1992 (Cth)

Legislation:

Crown Proceedings Act 1993 (NT)
Health Services Act 2014 (NT)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)
Personal Injuries (Liabilities and Damages) Act 2003 (NT)
Return to Work Act 1986 (NT)
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:

Proceedings stayed save for any application to remit to the Supreme Court of Western Australia and any order transferring proceedings to the Supreme Court of the Northern Territory

Representation:

Counsel:

Plaintiff	:	Mr M Hawkins
First Defendant	:	Ms K R Wood
Second Defendant	:	Mr K R Thomas
Third Defendant	:	Mr K R Thomas
Fourth Defendant	:	Not applicable

Solicitors:

Plaintiff	:	Chapmans
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):

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36
Koop v Bebb (1951) 84 CLR 629
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32
Pearce v Florenca (1976) 135 CLR 507
R v Falzon [2018] HCA 29
Rick Cobby Pty Ltd v Podesta Transport Pty Ltd [1997] 139 FLR 54
St George Bank Ltd v McTaggart [2003] QCA 59
Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1
Valkama v Jamieson [1994] 11 SR (WA) 246
Wigmans v AMP Ltd [2021] HCA 7

PRINCIPAL REGISTRAR MELVILLE:

By a generally endorsed writ issued 16 November 2020 the plaintiff commenced an action against the four defendants for personal injury sustained on the 15 December 2017 in the Northern Territory allegedly caused by negligence, breach of statutory duty and in the case of the first defendant, breach of contract.
It is pleaded the second defendant is capable of being sued pursuant to the Health Services Act 2014 (NT) and that the third defendant and fourth defendant are capable of being sued pursuant to the Crown Proceedings Act 1993 (NT).
The breach of statutory duty is in respect of duties said to be imposed by the Work Health and Safety (National Uniform Legislation) Act 2011 (NT).
The writ was addressed to the first, second and third defendants in Alice Springs and Casuarina in the Northern Territory and to the fourth defendant at Canberra in the Australian Capital Territory. The writ also gave the plaintiff's geographical address as an address in Queensland.
The statement of claim filed the 12 January 2021 alleges that the plaintiff was employed by the first defendant as a remote area nurse from on or about the 1 June 2015, initially in the Northern Territory, then in Western Australia. Subsequently on or about September 2017 the first defendant in conjunction with the second defendant and/or third defendant relocated the plaintiff from Western Australia to Papunya in the Northern Territory for the purpose of establishing and working at a dialysis clinic.
In pars 14 ‑ 25 of the statement of claim the plaintiff pleads she flew to Alice Springs on or about 30 October 2017 to meet with the first, second and/or third defendants and subsequently met with a number of people where issues were discussed including the lack of fencing around the clinic, particularly in circumstances of recent vandalism, and the lack of a telephone connected at the clinic.
It is then alleged that on 15 December 2017 the plaintiff was performing her duties at the clinic when she was assaulted.
On 17 November 2020 the first defendant filed an unconditional memorandum of appearance. On 22 December 2020 the second and third defendants filed a conditional memorandum of appearance and by chamber summons dated 29 December 2020 the second and third defendants sought orders that the action be summarily dismissed, alternatively the indorsement to the writ be struck out on the grounds the action is an abuse of process or alternatively that the action be stayed pursuant to s 20(3) of the Service and Execution of Process Act 1992 (Cth) (the Act). The fourth defendant has not filed an appearance.
By the time the application came on for hearing the second and third defendants abandoned their request for summary judgement and confined their application to seeking orders the action be stayed pursuant to s 20 of the Act or alternatively the indorsement to the writ be struck out as being an abuse of process.
The second and third defendants' application is supported by two affidavits sworn by Natasha Elise Burn dated 10 February 2021 and 15 February 2021. No evidence was filed by the plaintiff, and I accordingly conclude there is no evidence she can give which will assist her case beyond that given by Ms Burn.
In her affidavit of 10 February 2021 Ms Burn attaches various registry records demonstrating the first defendant's registered office and main place of business is in Alice Springs and the Northern Territory and demonstrating the second defendant is a Territory Government Entity with the trading names of Alice Springs Hospital and Tennant Creek Hospital. Ms Burn then attaches the incident report and a series of correspondences between the solicitors for the first and second defendants and the solicitors for the plaintiff whereby the plaintiff is invited to agree to a dismissal of action on the basis that the District Court of Western Australia does not have jurisdiction or, alternatively, the first and second defendants are entitled to obtain a stay pursuant to the provisions of the Act.
In her affidavit of 15 February 2021 Ms Burn provides evidence that a number of the witnesses referred to by the plaintiff at pars 15 ‑ 25 of the statement of claim reside in the Northern Territory as at 15 February 2021.
It is not in dispute that the defendants are not residents of the State of Western Australia, not in dispute that the alleged tort and breach of contract occurred in the Northern Territory and not in dispute that the plaintiff resides outside of Western Australia. The plaintiff's submission is that there is a connection with Western Australia in that the plaintiff has received from the first defendant workers' compensation payments pursuant to the Western Australian legislation, namely the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA).
I raised with the plaintiff's counsel the fact that I have no evidence of this. In the end I resolved to proceed to hear the application and that I would give the plaintiff an opportunity to apply to file evidence addressing this submission in the event I considered it might make a material difference to the outcome of the application.

The case of the second and third defendants

The second and third defendants' argument for a stay or alternatively that this action should be struck out is based on the proposition that there is a complete lack of nexus of the plaintiff's case to Western Australia.

The case of the plaintiff

As observed above, the case for the plaintiff is that the nexus with the State of Western Australia is the fact that workers' compensation was paid pursuant the WCIMA. The plaintiff goes on to submit that it would therefore be an abuse of process to commence the action in the Northern Territory in these circumstances because:
1.There is no Tribunal in the Northern Territory equivalent to WorkCover WA that could determine whether the plaintiff can obtain damages as against the first defendant because of the limitations of the WCIMA s 93K(4).
2.The plaintiff may be able to obtain judgement for damages against the first defendant with disregard to the deliberate restraints within the WCIMA.
3.If the plaintiff obtains judgement from the second third or fourth defendants, the first defendant may be barred from recovery of benefits paid to the plaintiff pursuant to s 92(b) and s 92(c) of the WCIMA. By this submission I assume the plaintiff contends the first defendant will not be able to utilise those provisions to recover compensation paid to the plaintiff out of any award of damages made against the other defendants.
4.The possibility of the situation described at point 3 above potentially would allow the plaintiff to claim both workers' compensation and damages which would unjustly enrich the plaintiff.
5.To commence an action against the first defendant in Western Australia and a second action in the Northern Territory against the other defendants would be an abuse of process, relying on Wigmans v AMP Ltd.[1]
[1] Wigmans v AMP Ltd [2021] HCA 7 [106].
The plaintiff further submits that the uncertainties about the application of the WCIMA means this is not a clear case and in the circumstances second and third defendants cannot demonstrate that the District Court of Western Australia is so inappropriate a forum that the continuation of the proceedings would be oppressive and vexatious to the defendants. The plaintiff goes on to submit that cases such as Oceanic Sun Line Special Shipping Co Inc v Fay[2] remain applicable 'notwithstanding the decision of John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36' and require the defendants to satisfy this court that it is so inappropriate a forum for these proceedings that the continuation of the proceedings would be oppressive and vexatious to them.
[2] Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32.

Service and Execution of Process Act 1992

Section 20 of the Act provides:
(1)This section does not apply in relation to a proceeding in which the Supreme Court of a State is the court of issue.
(2)The person served may apply to the court of issue for an order staying the proceeding.
(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.
(5)The court's order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense.
(6)The court may determine the application for an order without a hearing unless the applicant or a party objects.
(7)For the purposes of determining the application, the court may hold a hearing by audio link or audiovisual link.
(8)A person who is entitled to practise as a barrister, solicitor or both before a court in:
(a)the place of issue; or
(b)another State in which a person is participating in the hearing by audio link or audiovisual link;
has a right of audience before the court at the hearing.
(9)This section does not affect the court's power to stay a proceeding on a ground other than the ground mentioned in subsection (3).
(10)This section does not affect the operation of:
(a)the Jurisdiction of Courts (Cross‑vesting) Act 1987
(b)a corresponding law of a State.

Section 20(3)

The operation of s 20(3) was considered by Blaxell DCJ of this court in Valkama v Jamieson.[3]
[3] Valkama v Jamieson [1994] 11 SR (WA) 246.
His Honour first stated his understanding of the general law was that when another Australian tribunal is available and the local jurisdiction is clearly inappropriate, then in the absence of exceptional circumstances the action should be stayed as vexatious or oppressive. He observed 'exceptional circumstances' can include the fact that the plaintiff's claim is time barred in the other jurisdiction (provided that the plaintiff acted reasonably in commencing the proceedings which are subject of the application for a stay, and did not act unreasonably in failing to commence proceedings elsewhere).
In this regard he appears to have adopted the comments of Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay being the authority that the plaintiff relies upon in opposition to the second and third defendants' application for a stay. In that case Deane J observed that the onus lay upon the defendant to satisfy the local court in which the proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Deane J went on to say that the applicable test pursuant to traditional principles can in the ordinary case properly be seen as an 'inappropriate forum' test and that it did not follow that because another forum was more appropriate that the local forum was clearly inappropriate.
It is to be observed that the principles articulated in Oceanic Sun Line Special Shipping Co Inc v Fay represent the common law position. It is also to be observed that s 20 of the Act does not set an 'inappropriate forum' test but instead confers a discretion to stay proceedings in circumstances where the court in another state is the appropriate court to determine the matters.
At this point Blaxell DCJ then turned to the provisions of s 20 of the Act and stated the first enquiry is whether this court is satisfied the court of another State is 'the appropriate court' to determine the matter in issue. He concluded that the '"appropriate court" is the one with which the action has the most real and substantial connection and which can therefore be regarded as the natural forum'.[4]Having reached the decision the court of another State was the 'appropriate court' Blaxell DCJ then described the second stage being in respect of the exercise of the discretion to order a stay. It is at this point factors such as 'a legitimate personal or juridical advantage' come into play, which advantages he would seem to regard as possibly constituting exceptional circumstances, and relevant to the consideration of whether the discretion to order the stay should or should not be exercised.
[4] Valkama v Jamieson (249) - (250).
His Honour found that on the affidavit of the plaintiff there were very scant reasons explaining why proceedings were not issued in either New South Wales or Queensland before becoming time barred and any advantage the plaintiff might achieve by commencing proceedings in Western Australia and avoiding the time bar were offset by the comparable and equal disadvantage to the defendant.
Blaxell DCJ concluded there was no compelling reason against the defendant being granted a stay.
Since the decision in Valkama's case the High Court in John Pfeiffer Pty Ltd v Rogerson has made it clear that if the law of another State or Territory applies, then the law to be applied to the resolution of the matters in issue will include that State or Territories procedural law where that procedural law bears upon the existence, extent or enforceability of remedies, rights and obligations, those laws being regarded as substantive rather than procedural.[5] Accordingly it would not matter whether any relevant limitation period that might favour or disfavour a plaintiff or defendant would be characterized as substantive or procedural as no longer can any such procedural benefit or juridical benefit accrue to a party by commencing an action in Western Australia that should otherwise have been commenced elsewhere. That is, a plaintiff cannot avoid any time bar that might apply if proceedings were commenced in the Northern Territory by issuing proceedings in Western Australia.
[5] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 [102].
Blaxell DCJ's decision in Valkama was considered by Olsson J in Rick Cobby Pty Ltd v Podesta Transport Pty Ltd.[6] In Rick Cobby Pty Ltd v Podesta Transport Pty Ltd the applicant sought a stay both pursuant to s 20 of the Act and also based on common law principles. To that extent the application was similar to the application brought in Valkama, namely both pursuant to s 20 of the Act and on the grounds the continuation of the proceedings in Western Australia would be vexatious and oppressive. The vexatious and oppressive argument was based on the proposition that the District Court of Western Australia was a clearly inappropriate forum.
[6] Rick Cobby Pty Ltd v Podesta Transport Pty Ltd [1997] 139 FLR 54.
Neither case is similar to this case because the second and third defendants do not seek a stay based on common law principles.
Olssen J would appear to have disagreed with Blaxell DCJ insofar as he perceived the latter as applying common law principles in deciding what would constitute an 'appropriate' court, Olsson J being of the view that s 20(4) unequivocally specified those matters that the court was to take into account in deciding the 'appropriate' court for the purposes of the section. It was Olssen J's view that s 20(4) of the Act appeared to be a self-contained code whereas s 20(9) of the Act preserved the common law powers to stay proceedings.
However the decisions in both Valkama and Rick Cobby Pty Ltd v Podesta Transport Pty Ltd were considered by the Queensland Court of Appeal in St George Bank Ltd v McTaggart. In that decision the Queensland Court of Appeal adopted Blaxell DCJ's definition of what constituted the appropriate court,[7] namely the one with which the action had the most real and substantial connection and therefor can be regarded as the natural forum. The decision in St George Bank Ltd v McTaggart should be followed.[8] Accordingly I do not accept the plaintiff's argument that the applicants are required to prove this court is a 'clearly inappropriate court'. I do accept the applicants are required to prove the Supreme Court of the Northern Territory is the appropriate court and that it would not be unjust to order a stay.
[7] St George Bank Ltd v McTaggart [2003] QCA 59 [11], [20].
[8] R v Falzon [2018] HCA 29.

Section 20(4)

In St George Bank Ltd v McTaggart, the Court of Appeal also stated that s 20(4) provides a non-exhaustive list of matters that are to be taken into account 'in determining whether the court of another State is the appropriate court'.[9] It is useful at this stage to go through those enumerated matters having regard to the evidence. Whilst s 20(4) discretely enumerates the matters that are to be taken into account, it seems to me that to some degree they overlap because considerations as to where the parties reside and where the tort occurred are also relevant in deciding what is the most appropriate law to apply.

The place of residence the parties and their witnesses

[9] St George Bank Ltd v McTaggart [11].

The evidence indicates the first second and third defendant reside in the Northern Territory, the fourth defendant resides in the Australian Capital Territory and the plaintiff resides in Queensland. The evidence also indicates a number of witnesses were at least shortly prior to the alleged assault on the plaintiff present in the Northern Territory and that at the time of the assault her assailants resided in the Northern Territory. I have no evidence from the plaintiff as to where any other witnesses she may wish to call reside. Hence on the available evidence all witnesses other than the plaintiff likely reside in the Northern Territory and the plaintiff resides in Queensland.

The place where the subject matter of the proceedings is situated

The land on which the alleged assault occurred is situated within the geographical boundaries of the Northern Territory.

The financial circumstances of the parties

I have no evidence as to the financial circumstances of the plaintiff. Whilst the defendants are governmental and likely to have the financial backing of the State I otherwise have no evidence as to their financial circumstances.

Any agreement between the parties about the court or place in which the proceeding should be instituted

I have no evidence that there is any agreement between the parties on these issues.

The law that would be most appropriate to apply in the proceeding

In this case the alleged tort occurred within the geographical boundaries of the Northern Territory. At first sight it seems clear that the law of the Northern Territory will govern all aspects of the defendants liability to the plaintiff, the High Court having stated in John Pfeiffer Pty Ltd v Rogerson that the lex loci delicti governs torts committed in Australia which have an interstate element, that is, the law of the place in which the tort occurred applies in the resolution of the litigation, not the law of the state in which the case is heard.[10] The High Court went on to say:[11]
Development of the common law to reflect the fact of federal jurisdiction and, also, the nature of the Australian federation requires that the double actionability rule now be discarded. The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not procedural laws.
[10] John Pfieffer Pty Ltd v Rogerson [87].
[11] John Pfieffer Pty Ltd v Rogerson [102].
The plaintiff pleads a breach of Northern Territory legislation being the Work Health and Safety (National Uniform Legislation) Act 2011 giving rise to her cause of action based on breach of statutory duty and pleads her right to sue the second defendant pursuant to the provisions of the Northern Territory's Health Services Act 2014 and the third defendant pursuant to the Northern Territory's Crown Proceedings Act 1993.
Further, there are other Northern Territory statutes modifying the common law in the Northern Territory. Section 52 of the Return to Work Act 1986 (NT) abolishes a worker's right to bring an action for damages against his or her employer and the Personal Injuries (Liabilities and Damages) Act 2003 (NT) regulate and constrain the manner in which damages for personal injury are assessed.
However, the situation is complicated by the apparent extraterritorial operation of the Western Australian WCIMA, which provides that in order to claim damages from an employer a worker must have a minimum specified degree of permanent impairment and elect to do so, and which sets its own criteria by which the assessment of damages is regulated and constrained. There are also provisions in the WCIMA relating to the recovery of compensation in circumstances in which a worker successfully brings an action against his or her employer and/or third parties, provisions which create a statutory charge on any award of damages for the purposes of recovering compensation paid under the WCIMA and provisions to the effect the substantive law of Western Australia is the substantive law that determines whether a claim for damages can be made and how it is determined.[12]
[12] WCIMA s 92, s 93, s 93AA.
It has been held that State legislation with extraterritorial operation is valid if there is a real connection - even a remote or general connection - between the subject matter of the legislation and the State.[13] That being said, there is a presumption that State legislation does not have extraterritorial operation absent plain words or emphatic contextual indications to the contrary.[14] In this case the WCIMA choice of law provisions indicate an intention to have extraterritorial operation.
[13] Pearce v Florenca (1976) 135 CLR 507, 513 - 514, 518; Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1, 14.
[14] Koop v Bebb (1951) 84 CLR 629, 640.
Accordingly it appears the laws of both the Northern Territory and Western Australia purport to apply to the plaintiff's right to obtain damages from the defendants for the pleaded causes of action. It also may be that a choice between those laws must ultimately be made. However in regarding the matters referred to in s 20(4)(e) of the Act, it is to be observed that provision appears to contemplate there may be more than one law that is applicable to the proceedings, or that different laws might apply to different parts of the proceeding, and that attention is to be given to the law that is 'most appropriate to apply'.
Given the above quoted comments of the High Court in John Pfeiffer Pty Ltd v Rogerson and the fact that on the case as pleaded by the plaintiff she relies on legislation passed by the Parliament of the Northern Territory, it is my view that the law of the Northern Territory is the most appropriate to apply.

Whether a related or similar proceeding has been commenced against the defendants

There is no evidence that related or similar proceedings have been commenced anywhere. I cannot take into account the fact that these proceedings are on foot in this court in deciding whether the Supreme Court in the Northern Territory is an appropriate court.[15]

Conclusion as to the appropriate court

[15] St George Bank Ltd v McTaggart [11].

Taking into account the matters referred to in s 20(4) of the Act, and having regard to what was said in John Pfeiffer Pty Ltd v Rogerson, I am of the view that the Supreme Court of the Northern Territory is the appropriate court, it being the one with which the action has the most real and substantial connection and which can therefore be regarded as the natural forum.
Assuming the plaintiff was in fact paid workers' compensation under the WCIMA, and therefore the substantive law of Western Australia applies to the circumstances of the claim, this is a matter that I have taken into account in addition to the matters listed at s 20(4) of the Act. However, such a connection with this State is, in my view, nowhere near as strong as the connection the case has with the Northern Territory. Because I am of the view that if the WCIMA applies it is not of sufficient significance to change the conclusion that the Supreme Court of the Northern Territory is the appropriate court, it is not necessary for me to recall the parties to deal with the lack of evidence that the first defendant made payments to the plaintiff pursuant to the WCIMA.

The exercise of the discretion under s 20 of the Act

In Valkama's case Blaxell DCJ observed that it is at this point that factors such as 'a legitimate personal or juridical advantage' would come into play, as well as any reasonable explanation as to why this particular jurisdiction was selected. These considerations serve to inform the answer to the real question which is whether it would be unjust to order a stay.
There is no evidence from the plaintiff demonstrating any exceptional circumstances. Even assuming payment of workers' compensation under the WCIMA, and assuming that the provisions in the WCIMA relating to the recovery of compensation out of any award of damages may not operate in respect of a judgement delivered by the Supreme Court of the Northern Territory, it seems to me there is nothing in that which makes this Court better equipped to deal with those issues than the Supreme Court of the Northern Territory.
Further, there is no perceivable forensic advantage to the plaintiff in particular. On the scales of justice, to the extent there was some sort of advantage to the plaintiff in commencing proceedings in this State, this would be offset by an equally forensic disadvantage to the defendants. Further, why the plaintiff would have an interest in commencing proceedings in this State for the purpose of protecting any right the first defendant may have to recover its workers' compensation payments is not clear.
The above observation is subject to concerns that the plaintiff having commenced proceedings within the three year limitation period that would apply, but having commenced them in Western Australia because of rightly or wrongly held concerns about the application of the provisions of the WCIMA would now effectively have her claim dismissed if the stay was granted, because she would either be unable to commence proceedings in the Northern Territory or would face a limitation defence if she did so. In these circumstances, it is my view the action should be stayed subject to the plaintiff being permitted to apply to have this action remitted to the Supreme Court of Western Australia and to apply to that Court for an order under the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) to transfer the action to the Supreme Court of the Northern Territory.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EW
Court Officer
23 APRIL 2021