Hastie v Iluka Midwest Limited

[2003] WADC 95

HASTIE -v- ILUKA MIDWEST LIMITED [2003] WADC 95

Last Update:  01/05/2003

HASTIE -v- ILUKA MIDWEST LIMITED [2003] WADC 95
Link to Appeal:	[2004] WASCA 129
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 95
Case No:	CIV:1237/2001	Heard:	26 MARCH 2003
Coram:	FRENCH DCJ	Delivered:	29/04/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	4	Judgment Part:	1 of 1
Result:	Plaintiff's action stayed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ALLAN WAYNE HASTIE ILUKA MIDWEST LIMITED FISHER INVESTMENTS PTY LTD
Catchwords:	Workers' compensation Deemed employer Abuse of process stay of action
Legislation:	Workers' Compensation and Rehabilitation Act 1981, s 93, s 175
Case References:	Hewitt v Benale [2002] WASCA 163 Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (1997) 18 WAR 334 Jones v SNF (Australia) Pty Ltd & Anor [2002] WADC 207 Ketteman v Hansel Properties Ltd [1987] 1 AC 189

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : HASTIE -v- ILUKA MIDWEST LIMITED [2003] WADC 95 CORAM : FRENCH DCJ HEARD : 26 MARCH 2003 DELIVERED : 29 APRIL 2003 FILE NO/S : CIV 1237 of 2001 BETWEEN : ALLAN WAYNE HASTIE

Plaintiff

AND

ILUKA MIDWEST LIMITED
Defendant

FISHER INVESTMENTS PTY LTD
Third Party

Catchwords:

Workers' compensation - Deemed employer - Abuse of process - stay of action

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 93, s 175

Result:

Plaintiff's action stayed


(Page 2)

Representation:

Counsel:

Plaintiff : Ms R A Van Heerwaarden
Defendant : Mr L F A Nixon
Third Party : No appearance

Solicitors:

Plaintiff : Bradford & Co
Defendant : Clayton Utz
Third Party : No appearance

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

Hewitt v Benale [2002] WASCA 163

Case(s) also cited:

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (1997) 18 WAR 334
Jones v SNF (Australia) Pty Ltd & Anor [2002] WADC 207
Ketteman v Hansel Properties Ltd [1987] 1 AC 189

(Page 3)

1 FRENCH DCJ: The defendant has applied for a stay of proceedings until the plaintiff has applied for and obtained a determination or agreement that the injury the subject of these proceedings represents a degree of disability of not less than 30 per cent. The defendant also seeks leave to apply to strike out the plaintiff's claim if a determination or agreement is not obtained within 12 months.

2 The plaintiff's statement of claim against the defendant is for damages for negligence in respect of personal injuries allegedly sustained at the defendant's premises on 30 June 1995. The defendant, previously known as RGC Mineral Sands, operated a plant at Capel in the State of Western Australia. The plaintiff was present at those premises on 30 June 1995 when he was performing welding duties for the defendant pursuant to an agreement between the defendant and the plaintiff's employer Fisher Investments Pty Ltd. The plaintiff claims that he suffered injury as a result of a steel beam collapsing and striking him on the head. At the time he sustained his injuries he was engaged in work the subject of a contract between his employer and the defendant. That work was directly a part or process in the trade or business of the defendant (see the affidavit of Bernard Conchie sworn 25 March 2003). Consequently, pursuant to s 175 of the Workers' Compensation and Rehabilitation Act 1981 the defendant is the deemed employer of the plaintiff.

3 The plaintiff claimed and was paid workers' compensation from his employer (see par 8 of the affidavit of Joanne Wakely sworn 24 March 2003). The plaintiff's claim is therefore subject to the constraints on damages imposed by Part II of Div 4 of the Workers' Compensation and Rehabilitation Act 1981. Hewitt v Benale [2002] WASCA 163.

4 The plaintiff cannot obtain damages unless it has been agreed or determined that his degree of disability is not less than 30 per cent. The alternative that the degree of disability is significant, that is not less than 16 per cent, is no longer available as no election was made within the prescribed time. Paragraph 10 of the affidavit of Joanne Wakely establishes that the plaintiff has not made an application for a determination of his degree of disability to the Director of the Conciliation and Review Directorate of Work Cover Western Australia nor has an agreement or determination been recorded by the Directorate.

5 The defendant submits that the medical reports, even seen in a light most favourable to the plaintiff, fall well short of establishing that his degree of disability is more than 30 per cent. It is therefore unlikely that the plaintiff will be able to obtain such determination. On this basis, it

(Page 4)

was argued that the proceedings should be stayed until the plaintiff has obtained a determination in order to enable him to be able to recover damages from the defendant. It was also foreshadowed that the defendant may apply to strike out the plaintiff's claim if that determination is not forthcoming within a reasonable time.

6 The plaintiff submitted that it was not appropriate to grant a stay because the findings referred to above regarding the defendant's status as a deemed employer and the imposition of the statutory constraints on damages have not been established by evidence at trial.

7 However, the facts that support the findings above are established by the matters pleaded in the plaintiff's statement of claim or by the affidavits filed by the defendant in support of his application. I consider that it would be an abuse of process to wait for a trial to confirm matters that would render the proceedings a nullity. The whole point of interrogatory procedures such as an application for a stay of proceedings or to strike out a claim is to avoid pointless and expensive litigation. In the circumstances of this case the plaintiff's position can only be seen as an attempt to delay the inevitable. I am satisfied in the circumstances of this case that it is appropriate to grant a stay of proceedings. I am also of the opinion that there are strong grounds made out for the defendant to make an application to strike out the plaintiff's claim. The defendant has not pursued that at this stage in order to allow the plaintiff a period of 12 months to attempt to obtain the determination. The following orders in terms of the chamber summons will be made:

1. The action herein be stayed pending the making of an agreement between the plaintiff and the defendant, alternatively a determination on a reference under s 93D(10) of the Workers' Compensation and Rehabilitation Act 1981, that the plaintiff's degree of disability is not less than 30 per cent, and such agreement or determination is registered in accordance with the Workers' Compensation and Rehabilitation Regulations 1982.

2. The plaintiff do pay the defendant's costs of this application in any event.

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