| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HANNA-PAULEY -v- AMP SHOPPING CENTRES PTY LTD [2005] WADC 122 CORAM : COMMISSIONER SCHOOMBEE HEARD : 27 MAY 2005 DELIVERED : 31 MAY 2005 FILE NO/S : CIV 2523 of 2000 BETWEEN CABARINI FRANCES HANNA-PAULEY Plaintiff
AND
AMP SHOPPING CENTRES PTY LTD
Defendant
FILE NO/S : CIV 1885 of 2002 BETWEEN : CABARINI FRANCES HANNA-PAULEY Plaintiff
AND
STARWOOD PACIFIC HOTELS PTY LTD
Defendant
FILE NO/S : CIV 737 of 2004 BETWEEN : CABARINI FRANCES HANNA-PAULEY
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FILE NO/S : CIV 467 of 2005 BETWEEN : CABARINI FRANCES HANNA-PAULEY Plaintiff
AND
JODY WILLIAMSON
Defendant
Catchwords: Practice and procedure - Adjournment of trial - Matter to be heard with other matters before same trial judge - Potential prejudice to defendant wishing to institute third party proceedings - Potential for conflicting findings - Consent to listing not to be withdrawn
Legislation: Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947, s 5(1)
Result: Application for adjournment of trial refused Representation: CIV 2523 of 2000
Counsel:
Plaintiff : Mr T P Heard
Defendant : Mr M H Zilko
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Solicitors:
Plaintiff : Bradford & Co
Defendant : Jackson McDonald
CIV 1885 of 2002
Counsel:
Plaintiff : Mr T P Heard
Defendant : Ms E A M Hardwick
Solicitors:
Plaintiff : Bradford & Co
Defendant : Dibbs Barker Gosling
CIV 737 of 2004
Counsel:
Plaintiff : Mr T P Heard
Defendant : Ms L G Rafferty
Solicitors:
Plaintiff : Bradford & Co
Defendant : Greenland Brooksby
CIV 467 of 2005
Counsel:
Plaintiff : Mr T P Heard
Defendant : Mr D W St George
Solicitors:
Plaintiff : Bradford & Co
Defendant : State Solicitor for Western Australia
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Case(s) referred to in judgment(s):
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169
Harvey v Croydon Union Rural Sanitary Authority (1884) 26 Ch D 249
House v Department of Defence (1996) 136 ALR 444
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Littlewood v George Wimpey & Co Ltd & BOAC [1953] 2 QB 501
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Wakim Ex parte McNally (1999) 198 CLR 511
Roberts v Roberts (1994) 12 WAR 505
Taylor v Ansett Transport Industries (1987) 72 ALR 188
Case(s) also cited:
Nil
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1 COMMISSIONER SCHOOMBEE: I shall first give judgment in the application in the matter of Hanna-Pauley versus AMP Shopping Centres Pty Ltd, matter number 2523 of 2000. Pursuant to this application the plaintiff requests that the trial of this action listed for 13 and 14 June 2005 be adjourned and that this action be heard simultaneously by the same trial Judge along with actions numbered 1885 of 2002, 737 of 2004 and 467 of 2005 at a date yet to be fixed.
2 In this action, the plaintiff has sued the defendant as occupier of premises pursuant to the provisions of the Occupiers Liability Act 1985 (WA) in respect of personal injuries which she sustained when she exited a rear door of the premises occupied by the defendant. The plaintiff alleges in her statement of claim that in the course of exiting the rear door, she was required to step onto a narrow section of kerbing which caused her to lose her balance and to fall onto a driveway located next to the kerbing. 3 The other three actions which the plaintiff wishes to have heard before the same Judge also concern personal injuries incurred by the plaintiff. Matter number 1885 of 2002 concerns a claim by the plaintiff against Starwood Pacific Hotels Pty Ltd made pursuant to the provisions of the Occupiers Liability Act 1985 (WA). In this action, the plaintiff claims that she walked across the wet floor of a health club situated on the premises of Starwood Pacific Hotels Pty Ltd, slipped and fell to the ground as a result of which she suffered injuries. The plaintiff says that the accident occurred on 15 April 2000. 4 In matter number 467 of 2005, the plaintiff made a claim against Jody Williamson who was the driver of a motor vehicle which hit the plaintiff's vehicle from behind while the plaintiff's vehicle was stationary at a red traffic light. This accident is said to have occurred on 20 March 2001. 5 In matter number 737 of 2004, the plaintiff has sued David Jones Ltd as occupier of the same premises and regarding the same accident in respect of which the action against the defendant in this matter is brought. In the statement of claim against David Jones Ltd, the plaintiff alleges that she left the premises via the staff exit and that the door which was large and heavy closed behind her and forced her onto a narrow section of kerbing as a result of which she lost her balance and fell onto a driveway adjacent to the kerb. 6 The plaintiff's claim against David Jones Ltd in respect of the accident on the narrow kerbing is also based on negligence. In addition to
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the claim regarding the plaintiff's accident on the kerbing, the statement of claim contains a claim for personal injury incurred when the plaintiff slipped on vegetable matter on the floor in the kitchen in the course of her employment with David Jones Ltd. This accident is said to have occurred on 13 July 1998. 7 The plaintiff claims that as a result of the accident involving the heavy door and the narrow kerbing, she suffered injury to her cervical spine, her lumbar spine, her right knee and her right shoulder. The plaintiff says that as a result of the accident when the slipped on vegetable matter on the floor, she sustained an aggravation of the injury suffered during the previous accident as well as depression. 8 The plaintiff further alleges that as a result of the accident in the health club on the premises of Starwood Pacific Hotels Pty Ltd she suffered a fractured coccyx, injuries to her cervical spine, her shoulder and associated incontinence. In respect of the motor vehicle accident, the plaintiff has pleaded that she suffered injury to her cervical spine, lumbar spine and aggravation of previous injuries to the lumbar spine, headache, bruising to the right knee and right ankle and aggravation of previous injuries to the right knee. 9 There is no doubt that it would be expedient that all four of the above matters be heard together before the same Judge in respect of the quantum of damages to which the plaintiff may be entitled in respect of each of these matters. It appears that there is general agreement between the plaintiff's counsel and each of the counsel representing the respective defendants that this should be so. 10 However, the defendant in this matter, that is, in the claim against AMP Shopping Centres Pty Ltd, opposes the plaintiff's application that all four matters be heard together before the same Judge in respect of both liability and quantum. In an affidavit by Alex Lustig filed on behalf of the defendant in opposition to the plaintiff's application, Mr Lustig states that the plaintiff's action was already commenced on 19 September 2000 against the defendant and that the plaintiff entered this matter for trial on 3 October 2001. 11 Mr Lustig also says that at a listing conference on 21 January 2005, the plaintiff's counsel advised the principal registrar that he was instructed to proceed to trial in the action on the question of liability only and that the matter was according listed for trial for two days commencing on 13 June 2005. Mr Lustig has further sworn to the fact that the defendant
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in this matter has already organised two lay witnesses and five doctors to attend at trial on 13 and 14 June 2005 and has briefed counsel. The doctors have confirmed their attendance at that trial. 12 At the hearing of this application, counsel for the defendant advised me from the bar table that the five doctors would not be called to give any expert evidence but to give evidence regarding admissions made to them by the plaintiff. Counsel for the defendant further advised me that no expert evidence was to be called at the forthcoming trial. The affidavit by Mr Lustig expresses the concern that if all four actions were to be heard before the same trial Judge, the trial would be 10 to 15 days in duration. This would be so even though the trial in respect of the motor vehicle accident is apparently limited to issues of quantum of damages only. 13 The plaintiff filed an affidavit by Timothy Philip Heard in support of her application. The affidavit states that the plaintiff did not originally have her degree of disability assessed in accordance with section 93D of the Workers Compensation and Rehabilitation Act 1981 as amended. However, after the decision of the High Court in Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428 was handed down, the plaintiff instructed her solicitors to file an application for leave to proceed with a common law negligence claim against David Jones Ltd arising from the same accident. 14 Leave in respect of this application was granted on 2 April 2004 and a writ of summons claiming damages in respect of negligence, breach of statutory duty and breach of contract was filed against David Jones Ltd on 5 April 2004. However, the grant of leave to proceed with the common law action was appealed by David Jones Ltd and although this appeal has now been discontinued, it delayed the progress of the plaintiff's action against David Jones Ltd. 15 The plaintiff filed the current statement of claim against David Jones Ltd on 9 March 2005 and David Jones Ltd filed a defence on 30 March 2005. I have been advised from the bar table by counsel for the plaintiff that the discontinuance of the appeal occurred after the listing conference on 21 January 2005 at which the present matter was listed for trial. 16 The plaintiff's counsel has submitted that it would be prejudicial to the plaintiff to have the action against the defendant heard separately as regards liability because findings made by the Court in this action could "potentially preclude" the plaintiff from proceeding with her action against David Jones Ltd. Plaintiff's counsel further submitted that the
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estimate by the defendant's counsel that a trial at which all four matters would be heard together would take 10 to 15 days was excessive and that the issues on liability could be confined to three to five days. 17 The plaintiff has also indicated in the submissions filed by her counsel, although this is not stated in the affidavit, that David Jones Ltd intends to join AMP Shopping Centres Pty Ltd as a third party to action number 737 of 2004. Counsel for the plaintiff submitted that any finding made by the Court in the present matter set down for 13 and 14 June 2005 may prejudice David Jones Ltd in bringing its third party claim against AMP Shopping Centres Pty Ltd. 18 Counsel for David Jones Ltd who also appeared before me in respect of the application in this matter made similar submissions, namely that a finding by a Court in the matter against AMP Shopping Centres Pty Ltd may prejudice David Jones in making a future third party claim against AMP Shopping Centres Pty Ltd. 19 Counsel for David Jones Ltd informed me from the bar table that she had instructions on behalf of David Jones Ltd to proceed with a third party claim against the defendant but no affidavit to this effect was filed by David Jones Ltd. The plaintiff has also brought an application in the matter against David Jones Ltd for orders that all four matters be heard together before the same Judge. An affidavit in support of this application could have been filed by David Jones Ltd setting out the instructions from David Jones Ltd and the basis on which the proposed third party claim is to be made. 20 I note that David Jones Ltd already filed its defence in matter number 737 of 2004 on 30 March 2005. Order 19(2) of the Rules of the Supreme Court(WA) requires a defendant who wishes to issue a third party notice after having served his defence on the plaintiff to obtain the leave of the court to do so. No such application for leave has been made, nor has an affidavit been filed in which David Jones Ltd swears to the fact that such a third party claim is to be made. I was also not referred by counsel for David Jones Ltd to any authorities regarding the impact of any findings made by a Judge in the forthcoming trial against the defendant on any future potential third party action to be instituted by David Jones Ltd against the defendant. 21 Counsel for the plaintiff referred in his outline of submissions to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. However, as pointed out by counsel for the defendant in this matter, this
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case deals with res judicata and issue estoppel. It is a fundamental requirement of both res judicata and issue estoppel that there be an identity of the parties. 22 Counsel for the defendant referred me to the following authorities for the proposition that no estoppel arises against a party who was not involved in the earlier litigation of a particular issue: Taylor v Ansett Transport Industries (1987) 72 ALR 188 at 205 and House v Department of Defence(1996) 136 ALR 444 at 450. This is a well-established principle and I accept the submissions made by the defendant's counsel in this regard. Accordingly, David Jones Ltd would not be limited in the conduct of its proceedings by any issue estoppel or res judicata argument because it will not have been a party to the trial listed for 13 and 14 June against AMP Shopping Centres Pty Ltd. 23 In my view, a potential problem in respect of a third party action to be instituted by David Jones Ltd arises from the provisions of s 5(1) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 which provides as follows: "Where, by virtue of section 4(1), 2 or more persons are liable to pay damages or would if sued have been liable to pay damages, judgment recovered against one of them shall not be a bar to an action or actions against any other or others of them, but in such case: (i) the provisions of section 7(1)(b) shall apply with the necessary adaptations; (ii) all or any of such persons may as between themselves and any other or others of them claim and cover contribution and the provisions of section 7(1)(c) and of section 7(2) shall apply with the necessary adaptations." 24 It has been held by the High Court in James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 in respect of the equivalent provision in the Law Reform (Miscellaneous Provisions) Act 1946, New South Wales, that a joint tortfeasor is only amenable to a claim for contribution under this provision if the tortfeasor was either one "who is liable in respect of the same damage" or who "would, if sued, have been liable in respect of the same damage." There is no third category which identifies a person from whom contribution may be recovered by reference to the circumstance that such a person has been sued and has been held not liable (at [35] and [135] to [136]).
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25 This means that if the defendant is held not liable in the forthcoming trial on liability, David Jones Ltd will not be able to make a contribution claim against the defendant because the latter would no longer fall into one of the two categories identified by the High Court as constituting the only persons liable for a claim for contribution pursuant to s 5 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947.
26 It would not matter that the ruling that the defendant is not liable to the plaintiff was made in earlier proceedings. In James Hardie & Co v Seltsam, Kirby J, in his minority judgment held as follows at par 80: "This brings me to the crucial words: 'who is, or would if sued have been, liable in respect of the same damage'. Although a theoretical argument might arise that the first limb of this phrase ('who is .. liable') addresses a notional liability in law yet to be ascertained, the juxtaposition in par (c) of the first limb with the second suggests, as has been repeatedly held, that it is dealing with the case where the respondent tortfeasor has been sued and has been held liable, perhaps in separate, earlier or other proceedings." 27 His Honour then refers to Littlewood v George Wimpey & Co Ltd & BOAC [1953] 2 QB 501 at 510. Accordingly the potential prejudice to be suffered by David Jones Ltd if the forthcoming trial is not heard at the same time as the plaintiff's action against David Jones Ltd and any potential future third party claim by David Jones Ltd against the defendant is that David Jones Ltd will not have had the opportunity to support, with leave of the court, the plaintiff's case against the defendant. 28 On the other hand, if the defendant is found liable to the plaintiff in the forthcoming trial, David Jones Ltd will be able to institute third party proceedings against the defendant pursuant to section 5 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 and judgment recovered against David Jones Ltd will not be a bar to an action by David Jones Ltd against the defendant. However, David Jones Ltd may again have to establish the defendant's liability to the plaintiff in its third party claim against AMP Shopping Centres Pty Ltd. This could potentially lead to conflicting findings in the two actions. 29 There is also the potential for conflicting findings regarding particular issues that are material to both the claim by the plaintiff against the defendant and the claim by the plaintiff against David Jones Ltd
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arising from the incident with the heavy door and the narrow kerbing. However, whereas it is clearly desirable that conflicting findings on particular issues which arise in separate matters should not be made, this is not unusual. In George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169, Lord Porter referred to this fact as follows at 185 : "Two injured persons may sue separately and in different courts in respect of the same accident and upon identical facts, yet one court may come to one conclusion and the second to another, a circumstance which has indeed occurred within my own experience". 30 Seaman in Civil Procedure Western Australia at 20.19.16A says the following: "However, it is also not an abuse of process for a person to bring proceedings seeking to obtain a result different from the result of earlier litigation brought by others". 31 Seaman refers to Re Wakim Ex parte McNally (1999) 198 CLR 511 at 540, 546 and 590 which supports the statement made by Seaman. 32 Counsel for the defendant in this case has submitted that the defendant would be prejudiced if a trial listed for 13 and 14 January 2005 was not allowed to proceed. Counsel for the defendant argued that the plaintiff had consented to a particular course of conduct, namely to have the trial proceed on liability only and on 13 and 14 June 2005 well before the other three matters are likely to be heard, and that withdrawal of such consent should only be permitted where there is a question of mistake or misrepresentation. 33 In Roberts v Roberts (1994) 12 WAR 505 the claimants in arbitration proceedings consented to a particular preliminary issue being dealt with by the Supreme Court before arbitration. Ten days before the case was to be heard by the Supreme Court the claimants asked for leave to withdraw their consent. The Full Court, by their Honours Kennedy, Rowland and Murray JJ, refused to give leave to the claimants to withdraw their consent to the case stated. Rowland J referred to the case of Harvey v Croydon Union Rural Sanitary Authority (1884) 26 Ch D 249 and, in particular, the judgment of Lord Coleridge LCJ at 256 which held as follows:
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"I asked Cotton LJ to give judgment first in this case because it turns on the practice in the Chancery Division with which I am not familiar. In the Queen's Bench Division this case would not have been arguable, it being quite settled there that a consent given by counsel with authority and with full knowledge of the facts is binding and cannot be withdrawn. I agree with the Cotton LJ that this is the right rule, both in the interests of counsel and of those who employ them". 34 Rowland J expressed his agreement with this statement and noted that nothing had been put before the court to justify the court in giving leave to withdraw the claimant's consent in this matter. 35 In my view the plaintiff's consent to the case against the defendant being heard on 13 and 14 June 2005 and on liability only is not that different to the claimants' consent to having a particular issue heard as a preliminary matter in the Roberts v Roberts case. The plaintiff in the case against AMP Shopping Centres Pty Ltd has also not submitted any reason as to why this consent was initially given and is now to be withdrawn. It was only upon a question from the Court that counsel for the plaintiff said that the appeal by David Jones Ltd against the grant of leave to the plaintiff to commence common law proceedings had only been discontinued after this matter had been listed for trial on 13 and 14 June 2005. However, counsel for the plaintiff did not advance any reason why this may have changed the plaintiff's position on the trial being heard on 13 and 14 June 2005. 36 It is not for the Court to speculate whether the plaintiff changed her mind by reason of the appeal in the David Jones Ltd matter having been discontinued or why she initially consented to the case against the defendant being heard on liability only. Counsel for the defendant also emphasised in his submission that David Jones Ltd has not filed any affidavit in respect of the proposed third party proceedings. 37 In weighing up the potential prejudice for David Jones Ltd and the potential for conflicting findings regarding the liability of the defendant to the plaintiff against the right of the defendant to have its matter heard on 13 and 14 June 2005 on liability only as obtained by reason of the plaintiff's consent, I have come to the conclusion that the defendant's right obtained by reason of the plaintiff's consent should be upheld. 38 Counsel for the defendant in this matter has indicated that the defendant has no objection to the case against it being heard together with
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the other three matters as far as the quantum is concerned, should this still prove necessary after a decision has been handed down by the Judge hearing the trial on liability. 39 Counsel representing David Jones Ltd, counsel representing Starwood Pacific Hotels Pty Ltd and counsel representing Jody Williams all indicated that the parties they represented had no objection to their matters being heard together before the same Judge on liability and quantum, except for liability in the case against Jody Williams which has apparently been agreed upon. 40 Accordingly I make the following orders: (1) the plaintiff's application in this matter to have the trial of this action listed for 13 and 14 June 2005 adjourned be dismissed; (2) this action to be heard on liability only on 13 and 14 June 2005; (3) this action to be heard in respect of quantum only, together with actions numbered 1885 of 2002, 737 of 2004 and 467 of 2005 before the same trial Judge; (4) the plaintiff to pay the defendant's costs of this application, including any reserved costs. 41 I also make the following orders in respect of each of the chamber summonses filed by the plaintiff on 19 April 2005 in each of matters numbered 1885 of 2002, 737 of 2004 and 467 of 2005: |