Henderson v KCUT Pty Ltd & Anor - [2004] WADC 13

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HENDERSON -v- KCUT PTY LTD & ANOR [2004] WADC 13

CORAM: MACKNAY DCJ

HEARD: 28, 30 JANUARY 2004

DELIVERED : 4 FEBRUARY 2004

FILE NO/S: CIVO 7 of 2004

BETWEEN: BARRY NEVILLE HENDERSON
Plaintiff
AND
KCUT PTY LTD
First Defendant
WMC RESOURCES trading as WMC KWINANA NICKEL REFINERY
Second Defendant

Catchwords:

Workers' compensation - Degree of disability - Application for leave to bring proceedings - Whether grant of leave open - Whether plaintiff estopped due to prior refusal of grant of leave - Workers' Compensation and Rehabilitation Amendment Act 1999 (WA)

Legislation:

Interpretation Act 1984 (WA) s 37

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

Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) s 32

Result:

Leave to bring proceedings against second defendant given

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     Mr V Hockless
Second Defendant         :     Mr P P McCann

Solicitors:

Plaintiff:     Paul O'Halloran & Associates
First Defendant             :     Kott Gunning
Second Defendant         :     Phillips Fox

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

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Radcliffe v Pacific Steam Navigation Co [1910] 1 KB 685
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

Case(s) also cited:

Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464
Kuligowski v Metrobus (2002) 26 WAR 137
Makhoul v Barnes (1995) 60 FCR 572
Mayne v Mayne Nickless Ltd t/as Wards Express, unreported; FCt SCt of WA; Library No 960223; 26 April 1996
McNair v Press Offshore Ltd & Anor (1997) 17 WAR 191
Re Monger; Ex parte Wilderness Equipment Pty Ltd [2003] WASCA 202
United Construction Pty Ltd v Maketic [2003] WASCA 138

MACKNAY DCJ: On 30 January 2004 I granted leave to the plaintiff to bring proceedings against the second defendant and indicated that I would give reasons for having made that order in due course.
The plaintiff's application for leave against the first defendant had earlier been dismissed, the plaintiff having already obtained such a grant in other proceedings.
The plaintiff alleges that on 4, 5 and 6 February 1998 he was subjected to "chemical poisoning" whilst working as a first class welder in the employ of KCut Pty Ltd at the second defendant's premises, where he was under the supervision of the second defendant.
As a result of that exposure the plaintiff says that he suffered injury, through the negligence of both the first defendant and the second defendant.
He wishes to sue the second defendant.
In the event that the allegations were made out, and as a result of the deeming provision in relation to "an employer" the Workers' Compensation and Rehabilitation Amendment Act 1981(WA) (the Act) s 175, the second defendant for the purposes of the Act would be regarded as the plaintiff's employer.
That being the case, under the provisions of the Act as it stood at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WADC 13
Decision Date: 4 February 2004

CaseChat Overview and Summary

The case of Henderson v KCUT Pty Ltd & Anor involved the plaintiff, Henderson, seeking compensation for a degree of disability under the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA). Henderson had previously applied for leave to bring proceedings but was refused. The court was tasked with deciding whether to grant leave for Henderson to bring a new application for compensation, considering whether Henderson was estopped from making the application due to the prior refusal of leave. This required the court to interpret the relevant statutory provisions and assess the principles of legal estoppel as they applied to the facts of the case.

The central legal issue before the court was whether Henderson's prior refusal of leave to bring proceedings should estop them from applying for leave again. The court considered whether the prior decision barred Henderson from seeking leave under the principles of estoppel, and whether the statutory provisions of the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) provided any relevant guidance or restrictions. The court needed to balance the statutory requirements for bringing such applications against the equitable principles that may prevent Henderson from re-litigating the same issue.

The court found that Henderson was not estopped from applying for leave to bring proceedings again. It determined that the principles of estoppel did not apply in a manner that would preclude Henderson from making a new application. The court held that the statutory framework did not explicitly or implicitly bar a second application and that the refusal of leave in the prior application did not operate as a bar to a subsequent application. The court also noted that the statutory provisions did not provide any grounds to conclude that the prior refusal of leave should have any bearing on the current application.

The court granted Henderson leave to bring the proceedings for compensation, finding that the principles of estoppel did not apply to bar the current application. The court's decision allowed Henderson to proceed with their claim for compensation under the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA).

Orders