Gladstone v Qantas Airways Limited
[2021] VCC 1123
•23 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02358
| JOSEFINA GLADSTONE | Plaintiff |
| v | |
| QANTAS AIRWAYS LIMITED (formerly QANTAS Q CATERING PTY LTD (ACN 003 530 685)) | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2021 | |
DATE OF RULING: | 23 August 2021 | |
CASE MAY BE CITED AS: | Gladstone v Qantas Airways Limited | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1123 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Application by defendant for summary judgment
Legislation Cited: Civil Procedure Act 2010, s63; County Court Civil Procedure Rules 2018, r 22.22(b); Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; The Kronprinz (1887) 12 App Cas 256 at 259; Lawson v Wallace [1968] 3 NSWLR 82
Ruling: The proceeding is summarily dismissed. Plaintiff pay defendant’s costs of and incidental to the summary dismissal application and of the proceeding on a standard basis.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan | Bowman & Knox |
| For the Defendant | Ms H Donmez | Hall & Wilcox |
HER HONOUR:
Issue
1By Summons dated 10 August 2021, the defendant, Qantas Airways Limited (“Qantas Airways Limited”), has applied, pursuant to s63 of the Civil Procedure Act 2010 (Vic) (“the CPA”) and rule 22.22(b) of the County Court Civil Procedure Rules 2018 (Vic) (“the Rules”), to dismiss the plaintiff, Ms Josefina Gladstone’s (“Ms Gladstone”) proceeding commenced by Originating Motion dated 8 June 2020 and filed 8 June 2021 seeking orders under s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) (“the OM application”).
2Qantas Airways Limited’s application is supported by two affidavits of Ilona Carmen Strong sworn 6 July 2021 and 9 August 2021.
3The application is opposed. Ms Gladstone relies on two affidavits of Patricia Faye Westray Toop sworn 6 August 2021 and 9 August 2021.
4The parties agree that the OM application should not proceed. The issue to be determined in this application is whether the OM application should be dismissed or, alternatively, discontinued. For the reasons which follow, I have determined that the OM application should be dismissed.
Background
5Ms Gladstone claims that on 6 April 2018, she suffered injuries in the course of her employment. The precise circumstances and nature of the injuries are unclear, although there is some evidence that Ms Gladstone injured her shoulders and her neck, with radiating pain affecting her hands, together with psychological sequelae.
6At the time Ms Gladstone was injured on 6 April 2018, Q Catering Limited (ACN 003 530 685) was her employer.
7Qantas Airways Limited was the relevant self-insurer of Q Catering Limited.
8On 30 November 2018, Q Catering Limited was re-named Dnata Catering Australia Subsidiary 1 Pty Ltd. The ACN number – 003 530 685 – remained the same.
9On 1 December 2020, Ms Gladstone and her solicitors served a completed common law Form A application on Hall & Wilcox, the solicitors for Qantas Airways Limited. The application sought a certificate consenting to Ms Gladstone bringing proceedings for the recovery of damages in respect of alleged serious injuries within the meaning of s327 of the WIRC Act to her neck, left shoulder, right shoulder, left hand, lower back, and a psychiatric injury. The application identified Dnata Catering Australia (formerly Qantas Q Catering Pty Ltd), and not Q Catering Limited, as Ms Gladstone’s employer.
10Following service of this application, Ms Gladstone served a further serious injury application on Dnata Catering Australia Subsidiary 1 Pty Ltd on 9 December 2020 as successor of the named employer, Q Catering Limited.
11The correspondence between the parties on 10 December 2020 was somewhat confusing as neither party clearly identified, in every instance, the legal entities being referenced.
12Hall & Wilcox wrote to Ms Gladstone’s solicitors and asked, “Is your client pursuing a serious injury application against Qantas? If yes, the application needs to be amended and served again. If not, can you please confirm by return email that your client is not pursuing Qantas Airways Limited.” Ms Gladstone’s legal representatives replied unequivocally stating that their client was not pursuing Qantas.
13This correspondence prompted a further letter from Hall & Wilcox dated 16 December 2020. That letter stated that on 6 April 2018, the claimed date of injury, Ms Gladstone was employed by “Qantas Catering”. The letter went on to state that if Ms Gladstone was pursuing a serious injury application with a date of injury of 6 April 2018, Qantas Airways Limited was the self-insurer on risk for Qantas Catering. The letter then sought confirmation about whether the application was being pursued against Qantas Airways Limited or Dnata Catering Australia Subsidiary 1 Pty Ltd and suggested that if the application were to be lodged against Qantas, the application should be amended naming Qantas.
14As matters transpired, on 17 December 2020, Ms Gladstone withdrew the serious injury application which had been served on Dnata Catering Australia Subsidiary 1 Pty Ltd and instead served a further serious injury application that day on Qantas Airways Limited. That application named Qantas Airways Limited as the employer in one part of the form but referred also to Dnata Catering Australia Subsidiary 1 Pty Ltd as the employer later in the form.
15On 21 December 2020, Qantas Airways Limited advised that the 120th day for the purposes of s330(1) of the WIRC Act was 16 April 2021.
16This was confirmed by Ms Gladstone’s solicitors on 22 December 2020.
17On 14 April 2021, Qantas Airways Limited sent correspondence to Ms Gladstone’s solicitors confirming that the self-insurer would not issue a serious injury certificate under s335(2)(c) of the WIRC Act. This then triggered a time limit of 30 days for Ms Gladstone to make application to the Court for an order pursuant to s335(2)(d) of the WIRC Act for leave to bring proceedings for the recovery of damages in respect of the alleged injuries.
18The Originating Motion was filed on 8 June 2021. It sought leave pursuant to Part 7, Division 2 of the WIRC Act or s134AB of the Accident Compensation Act 1985, for Ms Gladstone to commence proceedings to recover damages in respect of injuries she alleges she suffered in the course of her employment, being a degree of impairment of 30 per cent or more; alternatively, that her injuries constitute “serious injuries” pursuant to s335 of the WIRC Act.
19The Originating Motion does not refer to either the date or nature of the alleged injuries.
20It names Qantas Airways Limited as defendant and makes no reference to the name of Ms Gladstone’s employer.
21Upon being served with the Originating Motion on 8 June 2021, Hall & Wilcox wrote to Ms Gladstone’s solicitors and informed them that Ms Gladstone’s application should have been filed within 30 days of receipt of the serious injury response (that is, , by 14 May 2021) and Ms Gladstone, consequently, could only commence proceedings with the consent of the Victorian WorkCover Authority (“Authority”).
22On 24 June 2021, Ms Gladstone lodged another serious injury application against Dnata Catering Subsidiary 1 Pty Ltd. A response to this application is yet to be provided by the Authority.
23On 23 July 2021, the Authority denied Ms Gladstone’s request for an extension of time for late filing of the Originating Motion against Qantas Airways Limited.
24On 29 July 2021, Ms Toop, on behalf of Ms Gladstone, forwarded a Notice of Discontinuance to Hall & Wilcox for execution.
25On 3 August 2021, Hall & Wilcox declined to consent to the discontinuance of the proceedings by Ms Gladstone and instead indicated that the proceedings ought to be dismissed with an order that Ms Gladstone pay Qantas Airways Limited’s costs of the proceeding.
26On 10 August 2021, Qantas Airways Limited commenced this application.
Legal principles
27Section 62 of the CPA provides that a defendant in a civil proceeding may apply to the Court for summary judgment on the ground that a plaintiff’s claim, or part of that claim, has no real prospect of success.
28Section 63 of the CPA confers power on the Court to give such judgment.
29Rules 22.16–22.22 of the Rules set out the procedure to be followed.
30Rule 22.22 provides that:
“Subject to Part 4.4 of Chapter 4 of the Civil Procedure Act 2010, on the hearing of an application the Court may—
(a)dismiss the application.
(b)give such judgment for the defendant against the plaintiff on the claim or the part of the claim to which the application relates as is appropriate (including the grant of any appropriate stay of the proceeding), having regard to the nature of the relief or remedy claimed; or
(c) with the consent of all parties [and notwithstanding r 77.03(1)], dispose of the proceeding finally in a summary manner.”
31The meaning of the ‘no real prospect of success’ test was considered by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (“Lysaght”).[1] The Court, by majority, held that the test is whether the claim has a ‘real’ as opposed to a ‘fanciful’ prospect of success as opposed to the former test, which only permitted summary judgment where the Court considered that the claim was ‘hopeless’ or ‘bound to fail’. The majority emphasised, however, that the power to terminate proceedings summarily, that is, without a trial on oral evidence, should be exercised with caution, and only when there is no real question to be tried. The majority further held that this caution should be exercised whether the application is made on an assessment of the evidence, or, as here, on a legal basis.
[1] (2013) 42 VR 27
32The Court has a discretion pursuant to s64 of the CPA to refuse summary judgment, even if a proceeding, or claim within a proceeding, has no real prospect of success; if it is not in the interests of justice to give summary judgment (s64(a)); or, because the dispute is of such a nature that only a full hearing on the merits is appropriate (s64(b)).
33The power to give summary judgment must be exercised in accordance with the overarching purposes of the CPA and consider the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.
34Where an application is commenced by originating motion, and not by writ, to discontinue the application, the plaintiff must have the leave of the Court or the consent of all other parties: see r 25.03 of the Rules.
35Rule 25.06 further provides that the discontinuance of a proceeding shall not be a defence to a subsequent proceeding for the same, or substantially the same, cause of action, unless the Court otherwise provides by any order granting leave to discontinue or withdraw. Further, an order discontinuing a proceeding is no bar to a subsequent proceeding being brought for the same cause of action unless the discontinuance is by leave and the order giving leave otherwise directs.[2] However, an order that a proceeding be dismissed, does bar a further proceeding for the same cause of action.[3]
[2] The Kronprinz (1887) 12 App Cas 256 at 259; Lawson v Wallace [1968] 3 NSWLR 82
[3] The Kronprinz (ibid) at 259
Parties’ submissions
36Ms Donmez, who appeared for Qantas Airways Limited, submitted that the proceeding should be summarily dismissed as it has no prospects of success. She relied on three principal submissions.
37First, she submitted that proceedings for damages for serious injury cannot be brought by Ms Gladstone because the pre-conditions in s335(2)(d) of the WIRC Act, necessary for the Court to grant leave to bring proceedings, have not been met. The application of the worker commenced by Originating Motion on 8 June 2021, was not made within 30 days after the worker received advice under s330(1) of the WIRC Act that Qantas Airways Limited would not issue a serious injury certificate. Qantas Airways Limited pointed to the fact that the advice was provided on 14 April 2021 which meant that proceedings were required to have been issued on or before 14 May 2021. Further, even if it was possible for Ms Gladstone to commence the proceeding after 14 May 2021, the Authority had to consent to the commencement of the proceeding under s337(1) of the WIRC Act and it had not provided consent.
38Second, even if there was some error on the part of the Authority, in not consenting to the bringing of proceedings, pursuant to s264 of the WIRC Act, the Authority’s determination is not able to be reviewed, overturned, or set aside by a court.
39Third, the action of Ms Gladstone’s solicitor in issuing the Originating Motion out of time and without obtaining the Authority’s consent as required by s337(1) of the WIRC Act, was an abuse of process because it was an attempt to circumvent the requirements under the Act.
40Mr Allan accepted that the proceeding should end but submitted that the appropriate order is that the proceeding be discontinued rather than dismissed. Until the serious injury application lodged on 24 June 2021 is determined, he submitted that it is premature to say that this proceeding has no utility whatsoever; particularly having regard to the effect of r 25.06 of the Rules if the proceeding were to be dismissed. He made that submission on the basis that:
(a) Ms Gladstone acted reasonably to commence the proceeding when she did. It could not be said that at that time that there was no prospect of success. It was not known what the Authority’s decision with respect to the proceeding would be and, in any event, Ms Gladstone took no active steps in the proceeding;
(b) The application to the Authority for consent pursuant to s337(1) of the WIRC Act was made promptly on 28 June 2021;
(c) Qantas Airways Limited was aware that Ms Gladstone had sought the Authority’s consent;
(d) Qantas Airways Limited filed this Summons on 6 July 2021 before the Authority had determined whether to provide consent pursuant to s337(1) of the WIRC Act;
(e) The Authority declined Ms Gladstone’s application after the summons to dismiss was filed by Qantas Airways Limited;
(f) After receiving the Authority’s determination, Ms Gladstone sought to file a notice of discontinuance but upon realising it needed Qantas Airway Limited’s consent, on 29 July 2021, sought consent from Qantas Airways Limited’s solicitors’
(g) On 3 August 2021, Qantas Airways Limited said it would not consent to discontinuance and, alternatively, sought an order for dismissal.
Disposition
41Having considered the parties’ submissions, in my view, there is no real prospect of success by Ms Gladstone in this proceeding and no utility in making an order that the proceeding be discontinued rather than dismissed.
42Ms Gladstone has known since the date she was injured that her employer was Q Catering Limited. This is evident from paragraph 2 of the affidavit of Patricia Faye Westray Toop sworn 6 August 2021, where Ms Toop deposes that Ms Gladstone “… was injured in the course of her employment on 6 April 2018 with the employer known at the time as Q Catering Limited (A.C.N: 003 530 685) …”. (My emphasis).
43Consistent with that knowledge, on 9 December 2020, Ms Gladstone served the serious injury application on her employer, Q Catering Limited (ACN 003 530 685), by that time known as Dnata Catering Australia Subsidiary 1 Pty Ltd, as required by s328(6) of the WIRC Act.
44The fact that she later withdrew the serious injury application against Dnata Catering Australia Subsidiary 1 Pty Ltd following correspondence from Hall & Wilcox dated 10 December 2020, does not, in my view, matter.
45First, the parties both considered that the further serious injury application served on Qantas Airways Limited on 17 December 2020 was a valid application.
46Second, Qantas Airways Limited had stated in its correspondence dated 16 December 2020 that it was the correct self-insurer. At no time has Qantas Airways Limited said that it was not the relevant self-insurer. On the contrary, it has maintained a position in its affidavit material, and upon the hearing of the Summons, that it is the correct self-insurer.
47Third, according to the Ministerial Guidelines issued pursuant to s352 of the WIRC Act, where the injury the subject of the application is sustained by the worker in his or her employment with an employer who is a self-insurer, the application and supporting documents must be addressed to the self-insurer at the self-insurer’s address. The serious injury application served on 17 December 2020 was served on Qantas Airways Limited.
48Fourth, the application in any event, referred to both Qantas Airways Limited and Dnata Catering Australia Subsidiary 1 Pty Ltd – albeit at different parts of the form – as Ms Gladstone’s employers.
49Finally, Qantas Airways Limited considered the substance of Ms Gladstone’s amended application naming Qantas Airways Limited (and if required Dnata Catering Australia Subsidiary 1 Pty Ltd) and informed Ms Gladstone’s solicitors in correspondence dated 14 April 2021, that it would not issue a serious injury certificate under s335(2) of the WIRC Act.
50In my view, based on these matters, upon receipt of the advice under s330(1) of the WIRC Act from Qantas Airways Limited dated 14 April 2021, notifying Ms Gladstone that Qantas Airways Limited would not be issuing a serious injury certificate under s335(2) of the WIRC Act, it was incumbent on Ms Gladstone, within the required time limits, to take steps to seek leave pursuant to s335(2)(d) of the WIRC Act, to commence proceedings to recover damages on the basis that she has suffered a “serious injury”. She has not satisfactorily explained why she did not take such steps within the requisite time limits. In short, Ms Gladstone had the opportunity to exercise her right to commence proceedings in accordance with the requirements of the Act. She did not do so.
51Based on the evidence before me, I accept that on 14 April 2021, Hall & Wilcox sent correspondence to Ms Gladstone’s solicitors under s330(1) of the WIRC Act confirming that Qantas Airways Limited would not issue a serious injury certificate under s335(2)(c) of the WIRC Act. I further accept that Ms Gladstone’s solicitors confirmed receipt of the serious injury response on 15 April 2021. Because the Originating Motion was not filed until 8 June 2021, I also accept that Ms Gladstone did not issue the Originating Motion filed 8 June 2021 within 30 days after she received advice under s330(1) of the WIRC Act.
52Further, I find, based on the correspondence from the Authority dated 23 July 2021, that Ms Gladstone’s solicitor’s request for an extension of time for late filing of the Originating Motion was denied. Accordingly, no consent of the Authority under s337(1) of the WIRC Act has been provided which would enable the Court to give leave to Ms Gladstone to bring proceedings.
53As Ms Gladstone is unable to satisfy the preconditions for the Court to grant leave under s335(2)(d) of the WIRC Act, she may not bring proceedings for the recovery of damages in respect of the injury.
54In my view, Ms Gladstone’s claim for leave under s335(2)(d) of the WIRC Act consequently has no reasonable prospect of success pursuant to 63 of the CPA.
55Notwithstanding this, the Court has an overriding discretion pursuant to s64 of the CPA to refuse summary dismissal and allow a proceeding to go to trial, even if a proceeding, or claim within a proceeding, has no real prospect of success, if it is not in the interests of justice to give summary judgment (s64(a)) or because the dispute is of such a nature that only a full hearing on the merits is appropriate (s64(b)).
56I have considered carefully, Mr Allan’s submission that pending the outcome of the further serious injury application which has been made on 24 June 2021, it is premature to say this proceeding has no utility whatsoever; particularly having regard to r25.06 of the Rules and its effect, and that the appropriate order should be that the proceeding should be discontinued rather than dismissed. Having considered Mr Allan’s argument, even if I were to exercise the discretion under s64 of the CPA in favour of Ms Gladstone, and not summarily dismiss the proceeding, as Ms Donmez submitted, Ms Gladstone would still not be able to demonstrate at any later time, that the preconditions enabling the Court to grant leave under s335(2)(d) could be met. In those circumstances, what utility would there be in continuing the proceeding? I find that Ms Gladstone’s application has no real prospect of success. Consequently, there is no benefit in allowing the proceeding to continue.
57Having made that finding, it is unnecessary to address the remaining submissions made by Ms Donmez in relation to s264 of the WIRC Act and whether there has been any abuse of process in the commencement of the current proceeding.
58I note for completeness, that the Originating Motion was commenced against Qantas Airways Limited (formerly Qantas Q Catering Pty Ltd). No ACN number appears on the Originating Motion to identify the defendant as required by s153(2) of the Corporations Act. That is at least an irregularity in the originating process. This bolsters me in the decision I have reached.
59Pursuant to r 22.22(b), I may give such judgment for a defendant against a plaintiff on the claim or the part of the claim to which the application relates, as is appropriate having regard to the nature of the relief or remedy claimed. In my view, the appropriate order to make upon a successful application for summary dismissal such as this, is an order that the proceedings are dismissed.
60Nothing which might happen with respect to the pending further serious injury application dated 24 June 2021 changes my view or inclines me to accept that ordering a discontinuance of the proceeding would be preferable. It is illusory to suggest that there is any present advantage to Ms Gladstone if the proceeding is discontinued as opposed to dismissed. The further serious injury application has been issued against Dnata Catering Australia Subsidiary 1 Pty Ltd. If there is a need, at some later point in time, to bring proceedings against the Authority in respect of the serious injury application dated 24 June 2021, as Mr Allan suggested might be necessary, a further proceeding could potentially be issued.
61Mr Allan was concerned that s338 of the WIRC Act may preclude further proceedings. This is currently not known, but if that were to be the result, that would be the outcome of an earlier application having been made which failed to follow the legislated process. It is speculative as to whether, if this proceeding was discontinued, reinstatement might ever later be sought. Reinstating an earlier, separate proceeding, is not part of the legislated process and would circumvent the procedures laid down by the WIRC Act. In my view, it is not an appropriate use of the Court’s processes. It is appropriate that an order be made summarily dismissing the proceeding.
62Ms Donmez sought an order that Ms Gladstone pay Qantas Airways Limited’s costs of the proceeding. Mr Allan accepted that an order that Ms Gladstone pay costs of the proceeding was appropriate, but only up to and including 29 July 2021. This submission was made on the basis that Ms Gladstone endeavoured to discontinue the proceedings at that date. Ms Donmez submitted in reply that until the hearing, Ms Gladstone did not offer to pay Qantas Airways Limited’s costs and it was necessary for Qantas Airways Limited to appear, in any event, to seek the order for dismissal in circumstances where consent to such an order was not forthcoming.
63Having considered the parties’ submissions, I accept that in circumstances where Ms Gladstone had not agreed to an order for dismissal, it was necessary and appropriate for Qantas Airways Limited to persist with its application and that a costs order should be made in its favour.
Orders
64Given Ms Gladstone has no real prospect of success, the Court will make orders as follows:
(1) The proceeding is summarily dismissed.
(2) The plaintiff pay the defendant’s costs of and incidental to the summary dismissal application and of the proceeding on a standard basis.
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