Hewer v Westpoint Constructions Pty Ltd - [2002] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HEWER -v- WESTPOINT CONSTRUCTIONS PTY LTD [2002] WADC 152

CORAM: YEATS DCJ

HEARD: 4 APRIL 2002

DELIVERED : Delivered Extemporaneously on 4 APRIL 2002 typed from tape and edited by Trial Judge

FILE NO/S: CIV 4164 of 1999

BETWEEN: NORMAN CHARTERS HEWER
Plaintiff
AND
WESTPOINT CONSTRUCTIONS PTY LTD
Defendant

Catchwords:

Appeal from Registrar - Application to vacate trial pending Full Court appeal outcome - Interpretation of s 175 of Workers' Compensation and Rehabilitation Act - Appeal allowed

Legislation:

Occupier's Liability Act 1985

Workers' Compensation and Rehabilitation Act 1981, s 175

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff: Mr M E Herron
Defendant: Ms S L Ford

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Deacons

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

Hewitt v Benale Pty Ltd [2000] WADC 22
Koljibabic v WMC Resources Ltd [2001] WADC 202
Queensland v JL Holdings (1997) 189 CLR 146

Case(s) also cited:

Nil

YEATS DCJ: This is an appeal from the decision of the learned Deputy Registrar Hewitt on 20 March 2002 dismissing the defendant's application to vacate the trial pending the outcome of an appeal in the Full Court.
The defendant now appeals from that decision. The action is a claim for damages under the Occupiers' Liability Act in relation to the plaintiff's injury in the course of his employment on premises under the control of the defendant. The accident is alleged to have taken place in August of 1997. In par 13, the defence has pleaded that the defendant was deemed, by s 175 of the Workers' Compensation and Rehabilitation Act, to be an employer of the plaintiff. If the defendant is successful in that regard then this matter would fall within the provisions (now repealed) of the Workers' Compensation and Rehabilitation Act which were enacted in order to limit the ability of workers to obtain common law damages.
There is a background to this which is timely and that is that on 13 February 2002 Hammond CJDC determined this issue in a manner that favoured the defendant in this case: Hewitt v Benale Pty Ltd [2000] WADC 22. In his decision the Chief Judge acknowledged that there had been an earlier decision in the District Court in the matter of Koljibabic v WMC Resources Ltd [2001] WADC 202 in which O'Sullivan DCJ and Registrar Kingsley took a different view on the meaning of s 175 of the Act.
The defendant brings his appeal on the basis that if the Full Court determines that the Chief Judge was correct, then the plaintiff's claim cannot succeed against the defendant. Counsel for the plaintiff does not completely accept that, but he does concede that he did initially concede that if the plaintiff lost this point they would lose it all. Counsel for the plaintiff now says he would have to consider the plaintiff's position and consider whether there was anything that could be retrieved at this late date, having not sought leave as would have been required under the provisions of the Workers' Compensation and Rehabilitation Act, before initiating its action in the District Court.
The point in issue is a fundamental legal issue. Judges of the District Court have taken opposite views on the interpretation of s 175 and the defendant appeals on the basis that to conduct a five day trial in such a case when an issue that would have to be determined by the trial Judge was already on appeal to the Full Court could turn out to be a waste of the time of the District Court. Further, in an affidavit of Graham John Rundle, sworn on 3 April 2002, the defendant indicates that, if the trial were held, the cost of the trial would be in the area of $53,000 and the defendant on a party‑party taxation would not be able to recover more than $36,000. If the Full Court's decision were to uphold the Chief Judge's interpretation of s 175 the defendant not only would waste this money but it would not be recoverable from the plaintiff.
There are a number of submissions put on behalf of the defendant. This case has had a troubled history. The writ was filed on 4 November 1999. The original insurer was HIH. Twelve months ago when Mr Herron began acting for the plaintiff, he agreed to a two month adjournment because of the collapse of HIH. There was a period then, after the two months, when the defendant was in a position where it had to instruct its own solicitors and a trial was listed in October of 2001. At one stage the defendant was unrepresented. Deacons, who are the present solicitors for the defendant, then became involved and vacated the trial dates on the basis that they had recently taken over and that they would be seeking some cost support through the HIH indemnity fund. That has occurred and the funds being utilised will come from the government assistance scheme which has been put in place. Taxpayers will pay 90 per cent of the trial costs in regard to this claim.
The trial dates were fixed at a listing conference in January of 2002 and, although the s 175 issue has always been part of the defence case, it was only in February when the Chief Judge's decision was handed down that the defendant became aware that there was a live issue going on appeal to the Full Court.
The plaintiff submits that this appeal to the Full Court could result in a delay of 18 to 24 months and, on the face of it, I accept Mr Herron's submission about that, but I would temper that in two ways. First of all, this will be an appeal simply on issues of law. The decision in Hewitt v Benale (supra) by the Chief Judge was a decision based on a schedule of agreed facts. It was a pure decision of statutory interpretation. The Full Court appeal, therefore, would not be expected to take as much time as an appeal involving issues of fact and law.
Further, it would seem to me that if cases are pending in the District Court waiting for this decision from the Full Court there could be some basis for an expedited hearing of the appeal. The appeal involves a relatively small question of law and would not necessarily take the time taken by more complex appeals.
I appreciate that at this time the plaintiff is in a bad position financially. I accept that workers' compensation payments ceased early in 2001 and the plaintiff is now receiving disability pension. I accept that in most cases an efficient use of the District Court's time would not involve continual adjournments of trials pending appeals elsewhere, but, in this particular case, having looked at the particular issue that is involved and realising that it could well determine the entire outcome of the case, it seems to me that it would not be an appropriate use of the Court's time to proceed with a five day trial. The result of that trial, whichever way it went, would not finally resolve the matter. If the plaintiff were successful the defendant would seek a stay in any event. If the decision in the Full Court went in the defendant's favour it could result in a waste of the District Court's time and a waste of the witnesses' time, including doctors, in attending the trial.
Much is made of case management and I accept the submissions that were made to me concerning the case of Queensland v JL Holdings (1997) 189 CLR 146. Case management is very important to doing justice in the court. Generally, delay leads to injustice. However, ultimately, I accept that case management is not an end in itself. What I must do is look at the justice of this particular case, taking account of all the matters before me. I believe this is a case where the appeal should be allowed and the trial dates vacated.
I am concerned about the order sought by the defendant. I do not think it would be appropriate for the matter to have to wait an appeal to the High Court. It seems to me that the order the court should make is that the trial be adjourned pending the final outcome of the appeal process in the Full Court. Whenever that decision is handed down this trial could be listed. There will also be an order that the defendant pay the plaintiff's costs thrown away.
For these reasons the appeal is allowed.