Green v Ron Crouch Transport

[2019] VCC 1725

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-17-01158

GREGORY GREEN

Plaintiff

v

RON CROUCH TRANSPORT PTY LTD ACN 002 187 046

And

SLINGO EARTHMOVING PTY LTD CAN 123 337 926

First Defendant

Second Defendant

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	15 & 21 October 2019
DATE OF RULING:	28 October 2019
CASE MAY BE CITED AS:	Green v Ron Crouch Transport & Ors
MEDIUM NEUTRAL CITATION:	[2019] VCC 1725

REASONS FOR RULING
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Subject:  Accident compensation
Catchwords:   Choice of law;  Substantive or procedural
Legislation Cited:                Workplace Injury Management and Workers Compensation Act

1998 (NSW); Accident Compensation Act 1985 (Vic); Workers

Compensation Act 1987 (NSW)

Cases Cited:Alvear v Chetwynd Park Pty Ltd [2014] VSCA 214:  
Di Paolo v Salta Constructions Pty Ltd & Ors [2015] VSCA 230; John Pfeiffer Pty Ltd v Rogerson  (2000) 203 CLR 503;

Hodgson v Dimbola Pty Ltd & Anor [2009] ATCS 59

Ruling:Strike-out application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A. Magee QC with Mr B. Hill	Angela Sdrinis Legal
For the First Defendant For the Second Defendant	Mr A. Saunders Mr I. McDonald	Lee Legal Group Colin Biggers & Paisley

HIS HONOUR:

1       The defendants in this proceeding sought to strike out the plaintiff’s statement of claim on a number of grounds, as set out in a summons issued on 10 May 2019.  The summons also sought a number of declarations, particularly concerning the applicable law to be applied.  This question was agreed between the parties prior to the application being heard.  It is now agreed that the substantive law to be applied is that of the State of New South Wales.

2       The only remaining issue to be determined was whether or not the plaintiff’s proceeding should be struck out as a nullity on the basis that it was irregularly commenced contrary to the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) “(WIMWCA”).  This application was opposed by the plaintiff. 

3       The plaintiff and both defendants had filed affidavit material and outlines of argument in accordance with orders previously made on 30 August 2019. 

4       The plaintiff also sought leave in a separate summons issued on 16 September 2019 to amend the writ and statement of claim by adding two further defendants.  This application was ultimately not opposed, but any leave granted was dependent upon the outcome of the defendants’ strike out application.

5       The plaintiff’s claim arises out of an incident which occurred on 11 April 2014 at a housing estate that was under construction in Campbell’s Creek in Victoria.  The plaintiff was an interstate truck driver, based at Wagga Wagga in the State of New South Wales.  He was employed by the first defendant in Wagga Wagga and was required to travel to Victoria, and indeed other states in the course of his employment.

6       On the date of sustaining injury he had driven a truck and trailer from Wagga Wagga to Campbell’s Creek to deliver plastic pipes to the housing estate.  These pipes were unloaded at the site by the second defendant using a Victorian registered backhoe, which was fitted with tines.  As a result of the unloading operation the plaintiff alleges that some of the pipes on the trailer became unstable and fell, striking the plaintiff and causing injuries.  There is no agreement between the parties as to the precise circumstances of injury, particularly in relation to the actions taken by the driver of the second defendant’s backhoe. 

7       Although the original summons brought by the defendants raised an issue as to whether the circumstances of the injury amounted to a transport accident for the purposes of the Transport Accident Act 1986 (Vic), this application was not pursued.

8       The present proceeding is brought by the plaintiff in accordance with the provisions of the Wrongs Act 1958. The plaintiff does not seek to pursue any claim for damages against either defendant based upon any application of the Accident Compensation Act 1985 (Vic) (“ACA”) or the Transport Accident Act 1986 (Vic). Nor does the plaintiff seek to invoke the provisions of the WIMWCA and, in particular the mandated pre-litigated processes in pursuing this proceeding.

9       In both the written submissions and oral argument advanced by Mr Saunders, who appeared on behalf of the first defendant, considerable reliance was placed on the lack of compliance with the pre-litigated procedures mandated by the WIMWCA as the basis for the strike out application.

10      Mr Saunders referred in argument to the provisions of the Victorian legislation relating to choice of law. These are set out in Division 6AB of the ACA.[1]  There was no challenge to his submission that the substantive law governing both a claim for damages and the determination of any such claim would be that of New South Wales.

[1]Sections 129MA to 129MF

11      Mr Saunders’ argument then proceeded on the basis that s129ME would have effect to include, as matters of substantive law, “a provision of a State’s legislation about damages for a work-related injury, whether or not it would be otherwise regarded as procedural in nature.”[2]  As a consequence, statutory pre‑litigated processes which are set out in Chapter 7, Part 6 of the WIMWCA are substantive law and without compliance the plaintiff’s proceeding becomes a nullity.

[2]Section 129 ME(g)

12      Mr Saunders quite properly made application to supplement his submissions on 21 October 2019.  On that date he provided the court with a Ministerial Declaration publish in the Victorian Government Gazette.[3] This declaration was made under s 129ME of the ACA and declared in accordance with s 129ME(b) of the Workers Compensation Act 1987 and the WIMWCA. In submissions made on that day Mr Saunders urged the court to conclude that the declared legislation should in effect be wholly regarded as substantive law by virtue of s 129ME.

[3]G 26, 28 June 2007 1321

13      A number of authorities were provided by the parties, although ultimately both counsel in argument referred in detail to Alvear v Chetwynd Park Pty Ltd[4] and Di Paolo v Salta Constructions Pty Ltd & Ors.[5]

[4][2014] VSC 214

[5][2015] VSCA 230

14      In Alvear reference was made to the High Court authority in John Pfeiffer Pty Ltd v Rogerson[6] which highlighted the need to distinguish between substantive and procedural issues:

“First, litigants who resort to a court to obtain relief must take the court as they find it.  A plaintiff cannot ask that a tribunal which does not exist in the forum (but does in the place where the wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes.  Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum.  Secondly matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure.”

[6](2000) 203 CLR 503 at 543 [99]

15 The issue for determination in Alvear was whether or not in Victorian proceedings the provisions of New South Wales legislation limiting the use of undisclosed reports or other evidence would apply. At a directions hearing the plaintiff’s solicitors had sought discovery of certain reports. The defendants argued that the court in Victoria could not make such orders as s 318 of the WIMWCA was a substantive legislative provision which disentitled the plaintiff from using any report or other evidence that had not been disclosed as part of pre‑filing procedures. The court considered the matter by referring firstly to the provisions of s 150E of the Workers Compensation Act 1987 (NSW) (“WCA”) which defines “substantive law” in precisely the same terms as contained in s 192ME of the Accident Compensation Act 1985 (Vic) (“ACA”).

16      The court found the New South Wales legislation to be procedural and stated:

“… s 318(1)(d) does not have any effect on the extent or enforceability of the plaintiff’s rights in this case.  It affects the mode or conduct of proceedings taken to enforce the right.  It constrains the body of evidence that will determine the proceedings.”[7]

[7]Alvear v Chetwynd Park Pty Ltd [2014] VSC 214 at [29]

17      In Alvear the court went on to state that the characterisation of this particular provision as substantive law was relevant only in New South Wales so as to require those courts to apply in effect a suite of procedures that was set out in that legislation:

“It is evident that s 150A was clearly not intended to have extra-territorial effect. The New South Wales legislature did not intend that a Victorian court should be bound by its characterisation. The characterisation of s 318 as substantive for the purposes of s 150A is irrelevant. The definition of substantive law in s 150E was intended to be binding on New South Wales courts only, so as to require those courts to apply the procedures in Chapter 7. Thus, in addition to my primary view that s 318 is procedural under Victorian choice of law rules, the intention of the legislature in New South Wales was to characterise s 318 as procedural in this circumstance.”[8]

[8]Ibid at [34]

18      Di Paolo v Salta Constructions Pty Ltd concerned the applicability of Western Australian limitation periods to a Victorian worker who was injured whilst working temporarily in Perth.  The particular issue related to the applicability of a six year Victorian limitation period to two non-WorkCover defendants who had no connection with Victoria.  The relevant limitation period in Western Australia was three years and the plaintiff’s proceeding had been issued outside that period.  The trial judge ruled in favour of those non‑WorkCover defendants. 

19      The plaintiff appealed that decision.  In rejecting the appeal the court stated:

“… it is noteworthy that the uniform legislative scheme does not impose any uniform limitation period but preserves the operation of the existing limitation periods as part of the substantive law of each jurisdiction.  We agree with Safe Labour that commercial organisations are entitled to assume that the exposure of their businesses to legal liability is ordinarily governed by the law of the jurisdiction in which they conduct their business.  The cost and uncertainty of making such an organisation potentially subject to claims within a limitation period of a jurisdiction with which its business operations and products have no connection is a matter that the legislatures may well have balanced against any detriment to a worker arising from the non-application of the limitation period of the jurisdiction with which his or her employment has a connection.”[9]

[9]Di Paolo v Salta Constructions Pty Ltd & Ors [2015] VSCA 230 [122]

20      Ms Magee QC, who appeared with Mr Hill for the plaintiff, referred briefly to Hodgson v Dimbola Pty Ltd & Anor.[10]  In that case a finding was made that s 315 of the WIMWCA was procedural rather than substantive.[11]  Ms Magee QC described the relevant sections of the WIMWCA, dealing with pre‑filing statements and mediation as procedural in nature principally on the basis that they are directed to governing the mode of conduct of court proceedings, rather than being of a type that would affect the existence, extent or enforceability of the rights and duties of the parties.  Such provisions were substantive for the purposes of New South Wales legislation, but were procedural only beyond the jurisdictional limits of that state.

[10][2009] ATCSC 59

[11]Ibid at [24]

21      Mr Saunders in reply sought to distinguish Alvear on the basis that it concerned procedural steps following the issue of a proceeding and was not concerned with pre‑litigated procedures which came within the ambit of the wording of s 129ME(g). He submitted that the requirements of sections 313, 315 and 318A of the WIMWCA would properly be engaged by the wording of s129ME(g) as those were provisions of a state’s legislation “about damages for a work‑related injury, whether or not it would otherwise regarded as procedural in nature.”[12]

[12]Accident Compensation Act 1985 s 129ME(g)

22      Mr Saunders submitted that the normal principles of statutory interpretation would require the court to conclude that this provision was broadly cast and should be applied in the present case so as to require this court to treat the New South Wales pre-litigation provisions as substantive law.

Analysis

23 Section 129ME of the ACA defines substantive law as including seven different categories of legislative provisions referred to in paragraphs (a) to (g). It forms part of Division 6AB of the ACA, which were introduced in Victoria and other states and territories in 2003 following the High Court’s decision in Pfeiffer.  It is clear from the matters dealt within each of the paragraphs that the laws contemplated are those which deal with the existence or otherwise of rights of action, limitation periods, types of injury or types of damages that may be recovered, and matters said to affect substantive rights or potential liabilities.

24 The reference to the Ministerial Declaration made by Mr Saunders during his further submissions on 21 October 2019 do not, in my view, have the effect of transforming each of the pieces of legislation referred to by the Minister into substantive law. The declaration in my view identifies those state and territory statutes to which s 129ME applies. The purpose of the declaration is to define those relevant pieces of legislation which may, to a greater or lesser extent, modify the substantive common law to be adopted and applied by an interstate court applying the law applicable to that particular state or territory. It cannot in my view be applied in the manner as submitted by Mr Saunders.

25      The plaintiff in the present proceeding has sought to claim damages in this court at common law on the basis that the defendants, either jointly or severally, were guilty of tortious acts within the State of Victoria resulting in injury, loss and damage.  Those are his substantive rights which are governed, as against the first defendant, by the substantive law of the State of New South Wales.  Whether or not there has been compliance with pre‑litigation procedures mandated in New South Wales courts or not, is clearly a procedural matter. 

26 I am not satisfied that the circumstances of this case could invoke the operation of paragraph (g) of s 29ME ACA as those provisions could not be described as legislation “about damages for a work-related injury.” Those provisions concern solely the pre‑issue requirements within the State of New South Wales. Compliance or otherwise does not impact on the substantive rights of the plaintiff, nor the substantive liability of the first defendant as the plaintiff’s New South Wales based employer.

Conclusion

27 For the reasons I have given I am not satisfied that any order should be made pursuant to Rule 23.06 of the County Court Civil Procedure Rules 2018 to strike out the writ and statement of claim.

28      I propose to issue a declaration in accordance with the consent of the parties, that the state with which the plaintiff’s employment is connected is the state of New South Wales.

29      I propose to grant leave to the plaintiff to amend the writ and statement of claim by adding Slingo Plant Pty and Graeme Slingo as third and fourth defendants to this proceeding.

30      By 7 November 2019 the plaintiff is to file and serve the amended writ and statement of claim dated 9 September 2019, together with a copy of this order on Slingo Plant Pty and Graeme Slingo and all other parties to this proceeding.

31      I will hear the parties on the question of costs and any further orders sought in relation to the respective summonses.

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