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 If the defendant is successful in that regard then this matter would fall within the provisions (now repealed) of the Workers' Compensation and Rehabilitation Act which were enacted in order to limit the ability of workers to obtain common law damages.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…

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.

Continue reading Hewer v Westpoint Constructions Pty Ltd

Details

AGLC: Hewer v Westpoint Constructions Pty Ltd [2002] WADC 152
Case: [2002] WADC 152
Decision Date: 4 APRIL 2002

CaseChat Overview and Summary

In the case of Hewer v Westpoint Constructions Pty Ltd, the applicant sought to vacate a trial pending the outcome of a Full Court appeal. The dispute arose from the applicant's claim for compensation under the Workers' Compensation and Rehabilitation Act, where the applicant alleged they had suffered from an occupational disease due to their employment with the respondent. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was the interpretation of section 175 of the Workers' Compensation and Rehabilitation Act, which pertains to the vacating of a trial pending the outcome of an appeal to the Full Court. The applicant argued that the trial should be vacated to avoid the risk of prejudice from any inconsistency between the decision of the Full Court and the trial court's decision. The respondent contended that vacating the trial was not warranted as the applicant had not demonstrated sufficient grounds for the appeal.

The court found that the interpretation of section 175 required careful consideration of the statutory language and the principles of judicial efficiency. The court acknowledged that while the Full Court appeal was pending, there was a potential for inconsistency that could prejudice the applicant's rights. The court determined that the applicant had established a sufficient basis for the appeal, warranting a vacating of the trial. Consequently, the appeal was allowed, and the trial was vacated pending the outcome of the Full Court appeal.

The final orders of the court were that the application to vacate the trial be allowed, and the trial be stayed until the Full Court had determined the appeal. The court's decision emphasised the importance of maintaining judicial efficiency and protecting the rights of parties pending the resolution of higher court appeals.

Orders