| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GREENWOOD -v- THE SHELL COMPANY OF AUSTRALIA LIMITED & ANOR [2004] WADC 253 CORAM : REGISTRAR CHRISTO HEARD : 24 NOVEMBER 2004 DELIVERED : 13 DECEMBER 2004 FILE NO/S : CIV 470 of 2000 BETWEEN : SHIRLEY HELEN GREENWOOD Plaintiff
AND
THE SHELL COMPANY OF AUSTRALIA LIMITED
Defendant
OFFLINE HOLDINGS PTY LTD
Second Third Party
Catchwords: Practice and procedure - Application - Trial of preliminary issue - Principles to be applied - Turns on its own facts
Legislation: Workers' Compensation & Rehabilitation Act 1981,s 175
Workers' Compensation Reform Act 2004, s 10
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Result:
Defendant's application dismissed Representation:
Counsel:
Plaintiff : Mr N P Lindsay
Defendant : Ms J N Eversden
Second Third Party : No appearance
Solicitors:
Plaintiff : Marks & Sands
Defendant : Mallesons Stephen Jaques
Second Third Party : Not applicable
Case(s) referred to in judgment(s):
Carlo Nobili S.p.A. Rubinetterie v Militaire Nominees Pty Ltd (2004) WASC 47
Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529
Tepko Pty Ltd v Water Board (2001) CLR 1
Willsmore v Court [1983] WAR 190
Case(s) also cited:
Nil
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1 REGISTRAR CHRISTO: The original chamber application dated 4 November 2004 has been amended from its initial form. On 19 November 2004 the defendant filed an amended chamber summons. The amended summons seeks an additional order that the following questions be tried as preliminary questions before the trial of the action:
"(a) Does section 175 of the Workers' Compensation & Rehabilitation Act 1981 (WA) (the Act) deem the plaintiff to be an employee of the defendant for the purposes of division 2 of Part IV of the Act? (b) Whether by reason of the operation of section 93D and 93E(3) of the Act the plaintiff is required to obtain a determination that her degree of disability is not less than 30% before she is entitled to an award of damages in these proceedings? (c) Whether by reason of the operation of section 93E of the Act, the plaintiff is precluded from obtaining an award of damages against the defendant?" 2 The defendant advised at the hearing that it had abandoned its application for leave to further amend the defence, which was contained in the original chamber application. 3 Section 175 of the Workers' Compensation & Rehabilitation Act is relevant to this matter. The relevant provisions are as follows: "(1) Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act. …
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(3) The principal is not liable under this section unless the work on which the worker is employed at the time of occurrence of the disability is directly a part or process in the trade or business of the principal. … (5) Where compensation is claimed from or proceedings are taken against the principal, in the application of this Act a reference to the employer shall be read as a reference to the principal except where, for the purpose of calculating the amount of compensation, a reference is made to the earnings of the worker, the reference shall be read as a reference to the earnings of the worker under the contractor."
4 To come within the ambit of s 175, the defendant will need to establish that: (a) The work performed by the plaintiff is undertaken pursuant to a contract between the plaintiff's employer and the alleged principal (s 175(1) of the Act); (b) The plaintiff's disability occurred in respect of premises on which the principal has undertaken to execute the work or is under the control of management of the principal (s 175(7) of the Act); (c) The work undertaken by the plaintiff when the disability occurs is "directly a part or process in the trade or business of the principal" (s 175(3) of the Act); and (d) The plaintiff received workers' compensation payments.
Contract for execution of work 5 The defendant argued that it operates the business of selling motor fuels, lubricating oils and other products. The defendant leased premises to the second third party (the plaintiff's employer) to conduct the business of marketing petroleum products at the premises at Roebuck Plains. The premises are operated as a service station and roadhouse. It was submitted that the lease operates as both a lease and an undertaking of the second third party to carry on the business of selling the defendant's motor fuels and other products, providing automotive service facilities and providing restaurant facilities. It was argued that the lease is therefore an
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equivalent of a contract for the execution of work. The plaintiff disputed this contention and submitted that it was not the business of the defendant to operate the service station and sell its products directly to the general public. It was compared by the plaintiff to a franchise agreement and that the lease document provides a specific division of duties which were fairly clear.
Control of premises 6 The accident occurred at the residence which was part of the leased premises. At the chambers hearing the defendant argued that under the lease the defendant had agreed to undertake maintenance work on the residence and was given a right of access for the purposes of carrying out the maintenance. Therefore, it was submitted, it follows that the defendant had control and management of the premises. 7 However, in par 3(c) of the amended defence filed on 11 August 2004, the defendant says that the second third party assumed possession and control of the premises under the lease which was executed in or about 1992. In par 9 of the defence, it denies that it was an occupier under the Occupiers' Liability Act 1985, or that it was in possession or control of the premises subsequent to the second third party entering into possession. Therefore, not only are the plaintiff and the defendant opposed on this point, the defendant appears to be contradicting its own defence. 8 Turning to the lease document itself which was an exhibit to the affidavit of J N Eversden of 23 November 2004, the grant of lease is contained in cl 3 of the document. One of the hallmarks of a lease is that it grants exclusive possession of the premises to the tenant. This is reinforced by the covenant contained in cl 5, relating to quiet enjoyment ("... without any eviction, interruption or disturbance by Shell …"). 9 If the defendant did have the control and management of the premises as argued by the defendant at the chambers hearing, then the document entered into between the defendant and the second third party would be more akin to a licence and not a lease, no matter how it was described. The defendant's "obligation" to repair the premises contained in cl 15 of the lease is permissive rather than mandatory. Moreover, cl 15 merely permits the defendant to have access and does not contain any express or implied terms in relation to control or management. As such, it is not an unusual provision in a lease document and I find nothing in it to support the defendant's contention as to retention of control and management of the premises.
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Directly a part or process in the trade or business of the principal
10 In essence, the defendant argues that the plaintiff was injured while doing what was incidental to her work, that is, operating the service station. She was required to live onsite and at all times to be available. 11 Therefore, the entry into the residence was "work" and falls within the terms of s 175(3) of the Act. As support, the defendant relied on the case of Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529 in which it was said that "the course of employment involves doing 'whatever is incidental to the performance of the work' and will include what he 'is reasonably required, expected or authorised to do in order to carry out his actual duties'. Thus it may include being at a place at which the workman's presence is 'so consequential upon, or incidental or ancillary to' the employment that in being there is doing something in virtue, or in pursuance of his employment". 12 However, the parties cannot agree on what the plaintiff was actually doing at the time of the accident. In fact, in par 10 of the amended defence, the defendant denies that the accident occurred at all, although, as discussed above, it is submitted, in effect, that merely being on the residential part of the premises constituted "work". The defendant argues in effect that every moment on the premises was work related. 13 In her reply to the amended defence, the plaintiff argued that she was not working at the time of the accident and was returning to the residence to have a shower. The plaintiff contends that even if the plaintiff was found to be injured in the course of employment (vis-à-vis the second third party) it would not necessarily follow that she was engaged in work which was directly a part or process of the defendant's trade or business. In addition, there is a dispute between the parties of the nature of the trade or business of the defendant.
In receipt of workers' compensation payments 14 This aspect of the matter is not in issue.
Summary 15 Based on the material before me, it appears that most of the main elements in this matter are in serious contention. When considering all of the circumstances outlined above, I am not convinced that determination of a preliminary issue would be likely to dispose of the matter or that it may lead to a settlement. The parties' strong disagreement on the core issues, in a highly contentious area which has already led to quite a
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number of Supreme Court and High Court appeals, do not persuade me that further appeals on the issue would be unlikely.
Section 93D & Section 93E of the Act 16 In support of the application, the defendant also raised the issue that the plaintiff has not obtained a declaration as to a degree of disability under s 93E. The defendant submitted that there is no evidence that the plaintiff could obtain such a determination and that therefore, the defendant, if successful on the preliminary issue, would be entitled to stay the proceedings or be entitled to a judgment in its favour. The plaintiff argued that it was still open to the plaintiff to obtain a determination or an agreement, as long as it was obtained prior to an award of damages by the Court. If the defendant succeeded in the preliminary issue and then sought a stay of the main proceedings, it is quite likely that it would lead to further appeals in any case, as has happened in cases of this nature before. 17 As there was no medical evidence submitted to me by either party in respect of this point, I am unable to consider the likelihood or otherwise of the defendant's success on this issue.
Section 10 Workers' Compensation Reform Act 2004 (Reform Act) 18 The plaintiff raised in argument an issue in respect of s 10 of the Reform Act, which repeals and substitutes s 10A of the Act. As at the date of the hearing before me, the Reform Act has not been proclaimed. Nor was s 10 expressed to be retrospective. Accordingly, I did not consider it to be relevant to this application.
Other relevant considerations 19 In the case of Willsmore v Court [1983] WAR 190, Burt CJ observed in relation to a preliminary issue that "it is an exceptional way of proceeding and should be reserved for the exceptional case, and when it is used the question of law should be formulated in the order with precision, and it should be a question which on the admitted facts will finally dispose of the action or of an identifiable cause of action within it. It should not be used when the question of law so-called is but a step in the development of an argument". 20 I am not convinced that this is an exceptional case. Moreover, it became apparent during the hearing of the defendant's application that it would be difficult, if not impossible, for the parties to formulate a set of agreed facts and documents. The examination of s 175 issues above,
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provide some examples of the extent of the disagreement of the parties on fundamental facts. In considering a preliminary issue, it is helpful to the Court if as many facts as possible can be agreed, leaving the Court to deal with the issues of law. This appears highly unlikely in this case. The defendant also estimated that the case would take between one and two days. In these circumstances to use the words of the High Court in the case of Tepko Pty Ltd v Water Board (2001) CLR 1 the "utility, economy and fairness to the parties" is not in my view beyond question. 21 A set of principles to be used as guidelines to the exercise of the Court's discretion were set out by McKechnie J in the case of Carlo Nobili S.p.A. Rubinetterie v Militaire Nominees Pty Ltd (2004) WASC 47. In applying some of those criteria to this particular matter, it appears to me that the situation here is not "clear and simple". I am not convinced that given the nature of the issues between the parties, determination of a preliminary issue would save expense and inconvenience. 22 Nor is it clear that determination of the preliminary issue would determine the litigation. The Nobili case suggests that separate trials are inappropriate where the results depend on complex issues of fact or where the preliminary question is one of mixed fact and law, as in this present matter. In this particular case, there are many facts in issue, as well as the issues of law to be determined. I have already mentioned above that the resolution of a separate trial appears more likely to result in appeals rather than determination of the litigation. The defendant also advanced the proposition that a determination of issues tried separately may lead to settlement. However, there was little or no material or argument presented to support that conclusion. 23 Accordingly, I have decided that it would not be appropriate to give the defendant leave to have preliminary questions tried before the trial of the action and accordingly, the defendant's application is dismissed.
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