GLUHIC v PROK Group Limited

[2002] WADC 110

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   GLUHIC -v- PROK GROUP LIMITED [2002] WADC 110

CORAM:   WILLIAMS DCJ

HEARD:   20 MAY 2002

DELIVERED          :   17 JUNE 2002

FILE NO/S:   CIV 2229 of 2001

BETWEEN:   EDIN GLUHIC

Plaintiff

AND

PROK GROUP LIMITED
Defendant

Catchwords:

Appeal from decision of Registrar not to stay action pending resolution of the plaintiff's application pursuant to s 93E of the Workers' Compensation and Rehabilitation Act 1981 (WA)

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 93E

Result:

Appeal allowed
Action stayed

Representation:

Counsel:

Plaintiff:     Ms T Gild

Defendant:     Ms E L Madden

Solicitors:

Plaintiff:     Leonard Cohen & Co

Defendant:     McAuliffe Williams & Partners

Case(s) referred to in judgment(s):

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Martin v City of Perth [2001] WADC 183

Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150

Case(s) also cited:

Nil

1. WILLIAMS DCJ:  This is an appeal on the part of the defendant against the order of Registrar Harman made on 15 March 2002 wherein he ordered that:

   1.The defendant's Chamber Summons seeking an order that the proceedings be stayed pending the resolution of the plaintiff's application brought pursuant to s 93E of the Workers' Compensation and Rehabilitation Act 1981 (as amended) be dismissed.

   2.The costs of the application be the plaintiff's.

2. The jurisdiction exercised by the Registrar of the District Court in relation to interlocutory matters is a delegated jurisdiction.  A condition of the delegation of this jurisdiction is the provision for a complete review de novo before a Judge of the District Court.  In conducting such an appeal, each party may rely on evidence given in affidavit or orally before the Registrar.  Furthermore, a rehearing of the matter would also permit the admission of further evidence, without leave, subject to the discretion of the Judge to exclude such evidence where it is irrelevant or where it would be unjust to admit it.  It would be wrong to adopt a more restrictive approach:  Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 per Malcolm CJ at 28-29.

3. The statement of claim in these proceedings alleges that the defendant employed the plaintiff as a trades assistant and that on 19 October 1998 whilst in the course of his employment he suffered an injury to his lower back.  The plaintiff alleges that the injury was caused by the negligence and/or breach of statutory duty and/or breach of contract of the defendant.

4. The defendant by its defence denies negligence and in the alternative alleges contributory negligence.

5. Pursuant to s 93E(3) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") damages can only be awarded if:

   (a)it is agreed or determined that the degree of disability is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations; or

   (b)the worker has significant disability and elects in the prescribed manner to retain the right to seek damages and the election is registered in accordance with the regulations.

6. The Review hearing in respect of the assessment of the Degree of Disability in this matter was adjourned sine die by Review Officer McCloskey on 1 February 2002.

7. The matter was adjourned as there is a writ of certiorari filed in the Supreme Court in relation to the plaintiff's workers' compensation claim endeavouring to strike out the plaintiff's application for determination of the degree of disability.

8. It is the submission of counsel for the defendant that the plaintiff is not in a position to proceed with this action and at the present time it remains uncertain when a decision will be made regarding test cases in relation to the application for a writ of certiorari.

9. It is further submitted that to require the defendant to proceed with the defence of these common law proceedings before a determination as to the plaintiff's degree of permanent disability has been made will result in the possibility that significant legal costs in defending the common law proceedings may be incurred by the defendant to no avail.  In any event, pending the outcome of the decision in respect of the writ of certiorari the plaintiff may be unable to succeed with his claim in its entirety.

10. It is the submission of counsel for the plaintiff that:

    (a) s 93E does not however prevent a plaintiff from instituting proceedings in this Court for negligence against his employer: Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150; Martin v City of Perth [2001] WADC 183;

    (b)in determining the application the Court should consider and weigh up the prejudice to the respective parties;

    (c) if the plaintiff is successful in complying with either s 93E(3)(a) or s 93E(3)(b) of the Act, there will be no prejudice to the defendant;

    (d)if the plaintiff fails then the only prejudice to the defendant is the costs incurred, which could be remedied by an appropriate costs order;

    (e)if the plaintiff receives a determination that his disability is a "significant disability" and the plaintiff elects in the prescribed manner, then from the time that he makes the election he will no longer be entitled to his workers' compensation benefits.  Staying these proceedings will mean that once the plaintiff has received the determination by the Review Officer, that he will endure an additional six to nine months without any source of income and without any statutory benefits while the District Court action is pursued.

11. In relation to the defendant's submission that if the defendant is successful in respect of the writ of certiorari in relation to the current Form 22 filed on 11 December 1999 that the plaintiff may be unable to succeed with his claim in its entirety, it is the submission of counsel for the plaintiff that the writ of certiorari only applies to the current Form 22 and would not apply to any further Form 22 that may be filed.

12. In view of all the uncertainty with respect to this matter, I am of the view that this is an appropriate case to order a stay of proceedings until the provisions of s 93E(3) have been complied with. Until a determination is made pursuant to those provisions there is great uncertainty with respect to the plaintiff's position. Bearing in mind District Court Rules, O 1 with respect to caseflow management, it would seem to me to be a waste of resources of the Court to have this matter proceeding subject to those Rules when the final outcome of the plaintiff's application for a determination to the Conciliation and Review Directorate is unknown.

13. For these reasons I am of the view that a stay of proceedings should be granted.