Irena Spaleta v Anh Nominees Pty Ltd
[2016] VSC 104
•18 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 003325
| IRENA SPALETA | Plaintiff |
| v | |
| ANH NOMINEES PTY LTD (ACN 005 796 378) | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2016 |
DATE OF JUDGMENT: | 18 March 2016 |
CASE MAY BE CITED AS: | Irena Spaleta v ANH Nominees Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VSC 104 |
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PERSONAL INJURY CLAIM – Three periods of alleged injury – Proceeding commenced under the Wrongs Act 1958 (Vic) - Whether the proceeding should have been commenced under the Accident Compensation Act 1985 (Vic) - Application for summary judgment –Whether the proceeding has a real prospect of success – Civil Procedure Act 2010 (Vic) ss 61 - 64 - O 22 of the Supreme Court (General Civil Procedure) Rules 2015
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Manova | Vincent Ryan |
| For the Defendant | Ms A Ryan | Hall & Wilcox |
HER HONOUR:
This proceeding concerns a personal injury claim by the plaintiff against the defendant. The plaintiff alleges that the defendant was the owner and occupier of premises located in Brighton, in the State of Victoria (‘the premises’). She alleges that she suffered injuries as a result of being present at the premises and being exposed to a toxic environment.
During the course of the hearing, it became evident that the plaintiff makes allegations of injury against the defendant in respect of three periods:
February 2002 until November 2006 – as a visitor to the premises (‘the first period’);
November 2006 until May 2011 when she was an employee of Versus (Aus) Pty Ltd (‘Versus’) and worked at the premises (‘the second period’); and
after May 2011 until June 2013 (‘the third period’).
By summons filed 11 February 2016, the defendant seeks summary judgment in respect of the claim made against it by the plaintiff. The plaintiff opposes the application.
The defendant brings its summary judgment application on the basis that the claim has no real prospect of success because it is wrongly made under the Wrongs Act 1958 (‘WA’). The crux of its submission is that the plaintiff should have commenced her claim in accordance with the Accident Compensation Act 1985 (‘ACA’) and has failed to do so.
For the reasons below, the Court will make orders for summary judgment.
Submissions
In addition to the oral submissions made during the course of the hearing, written submissions were given by each party.
The following affidavits were relied upon by the parties in this application: affidavit of Liam Campion, solicitor for the defendant, affirmed on 9 February 2016 (‘the Campion affidavit’); affidavit of the plaintiff sworn on 1 March 2016 (‘the plaintiff’s affidavit’); and affidavit of the plaintiff sworn on 16 July 2012 in a Victorian Civil & Administrative Tribunal proceeding, being Exhibit ‘LBC-10’ to the Campion affidavit (‘the VCAT affidavit’).
The plaintiff’s written submissions referred to a supplementary affidavit of the plaintiff. The affidavit was sworn by the plaintiff on 1 March 2016 (‘the plaintiff’s supplementary affidavit’). It was not filed at the time of the hearing, but was filed on the subsequent business day. The defendant did not object to the affidavit being relied upon and did not make submissions in relation to it.
Defendant’s Submissions
The defendant refers to paragraph 2 of the statement of claim (‘SOC’). It pleads that the plaintiff was at all material times an employee of Versus. It also pleads that the plaintiff was at all material times a director of Versus until August 2011. It pleads that she was regularly and frequently in attendance at the premises in order to carry on the lingerie sales business operations of Versus pursuant to a lease between Versus and the defendant. The defendant submits that the injuries are alleged to have arisen in the lingerie shop where she worked, and that the shop was owned and occupied by the defendant. The defendant refers to the allegations that it breached its duty as an occupier pursuant to the WA, s 14B.
The defendant relies on s 82(1) of the ACA, which stipulates that a worker is entitled to compensation if there is caused to the worker ‘an injury arising out of or in the course of employment’. The defendant refers to the broad definition of ‘worker’ in s 5 of the ACA. It submits that paragraph 2(b) the SOC specifically identifies the plaintiff as an employee, and the plaintiff is therefore covered by the definition of ‘worker’. It refers to the pleading in paragraph 2(c) that she was regularly and frequently in attendance at the premises to carry on the lingerie sales business of Versus.
The defendant submits that the SOC refers to injuries which arose out of or in the course of the plaintiff’s employment. It refers to paragraph 6 of the SOC in which the injuries are alleged to have been suffered as a result of being present at the premises. Further, it refers to the plaintiff’s VCAT affidavit. In paragraph 3 of that affidavit, the plaintiff deposes that she was injured at her workplace at the premises.
The defendant also refers to the various medical reports served by the plaintiff in this proceeding referring to alleged injuries having occurred at work: Exhibits ‘LBC-11’, ‘LBC-12’ and ‘LBC-13’ to the Campion affidavit.
The defendant submits that the plaintiff has not complied with the mandatory requirements of s 134AB(16) of the ACA and accordingly is barred from bringing proceedings.
The defendant submits that it is immaterial that the damages are claimed against the occupier (the defendant) rather than the employer. There is no provision in the ACA that limits the operation of s 134AB to damages claimed against an employer. Nor is it limited to a claim in negligence against an employer. The section focuses on the claim for compensation rather than the cause of action.
The defendant submits that although the breach of statutory duty cause of action arises under the WA, the award of damages is still governed by the ACA. It refers to the WA ss 28C(2)(c), 28LC(2)(c), 45(b).
The defendant refers to the allegations in the plaintiff’s affidavit that if her injuries were incurred during the first period, she would not be eligible to claim under the ACA. This is not raised in the SOC; it was raised for the first time in her affidavit. The defendant also says that none of the medical reports refer to injuries prior to employment in 2006. It submits that its application relates to the pleading as it currently is, and that speculation as to other potential causes of action is irrelevant to the issue of whether the proceeding as pleaded has any real chance of success.
The defendant does not consider that this is a proceeding where defects can be cured by amendment. It submits that it would be inappropriate to allow amendment to the SOC.
Plaintiff’s Submissions
The plaintiff brings her claim under s 14B of the WA, which relates to the liability of occupiers. The plaintiff relies upon a s 28LN WA Certificate of Assessment certifying she has an impairment of more than 10 per cent due to psychiatric injury: Exhibit ‘F’ to the plaintiff’s affidavit.
The plaintiff submits that the ACA is not applicable because her injuries and conditions arose at a time when she was not a ‘worker’ as defined in the ACA.
The plaintiff submits that even if she was a ‘worker’ under the ACA, she would have to rely upon the Uninsured Employers Indemnity Scheme under which she ‘may’ be entitled to compensation in circumstances where Versus did not have insurance.
In respect of the first period, in paragraph 3 of her supplementary affidavit the plaintiff deposes that in or around 2002 she was diagnosed with various illnesses that she did not have before.
The plaintiff relies upon paragraphs 13 and 14 of her affidavit referring to injuries arising during the third period following receipt of an expert report by Noel Arnold & Associates dated 25 February 2013 regarding asbestos on the premises (‘the asbestos report’).
The plaintiff submits that even if the ACA applies to the second period, it does not apply to the first or third period. Further, the WA applies to the first period. If her injuries flowed predominantly from that period, then potentially the WA applies to the second and third periods too.
The plaintiff submits that the application is premature as the plaintiff intends to amend her SOC and the defendant is on notice of this intention.
The plaintiff relies upon s 64 of the Civil Procedure Act 2010 (‘CPA’) and submits that it is not in the interests of justice to grant the application.
Applicable Principles
The application proceeded on the basis of ss 61-63 of the CPA, and Order 22 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). Section 62 of the CPA permits a defendant to make an application for summary judgment on the ground that the plaintiff’s claim or part of that claim has no real prospect of success. Both s 63 and Order 22 provide that the Court may give summary judgment in a civil proceeding if it is satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has “no real prospect of success”.
The Court of Appeal outlined the following test for summary judgment in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:
The test for summary judgment under s 63 of the CPA is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
The test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
It should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
At the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[1]
[1] (2013) 42 VR 27, [35] (Warren CJ and Nettle JA, with whom Neave JA agreed).
Section 64 of the CPA provides that the Court ‘may order that a civil proceeding proceed to trial if it is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because (a) it is not in the interests of justice to do so; or (b) the dispute is of such a nature that only a full hearing on the merits is appropriate’.
The decision of Croft J in JBS Southern Australia Pty Ltd v Westcity Group Holdings Pty Ltd provides guidance on the interpretation of s 64:
…having regard to the amount of money, principal and interest, the subject of the judgment and orders and the length and complexity of the provisions of the SUSA [Share and Unit Sale Agreement], I am of the opinion that even if the court had doubts as to the prospect of success of a defendant’s claims in circumstances like the present in terms of the s 63 test, the proper course would be to exercise the discretion under s 64 and to require a full trial of the claims.[2]
[2] [2011] VSC 476 (JBS), [66]; considered and distinguished by the Court of Appeal in De Saram v Brown [2015] VSCA 142 on the basis of the complexity of the legal dispute in JBS, see [160-164].
In that case, there was a dispute over liability for an amended taxation assessment issued by the Australian Taxation Office for more than $18 million.
In Matthews v SPI Electricity Pty Ltd, J Forrest J considered the relevant factual matrix, and after referring to s 64, his Honour held:
If I had thought that the common law claim was close to hopeless, I would, nevertheless, have applied the proviso contained in that section [CPA, s 64]. I would have done so because this is a group proceeding and the factual matrix is, I think, integral to determining whether there was any common law duty owed by police officers to Mrs Matthews and the group members. For the reasons I have set out I think that this is a dispute “of such a nature that only a full hearing on the merits is appropriate”.[3]
[3] (2011) 34 VR 584, [126]. (Citation omitted.)
Section 7(1) of the CPA states that the overarching purpose of the CPA and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 requires the Court to further that overarching purpose in making any order or giving any direction in a civil proceeding.
Application
First period
It was common ground that the allegations concerning the first period are not made in the SOC, and had not been made prior to the swearing of the plaintiff’s affidavit. Consistently with that, none of the correspondence exchanged between the parties and exhibited refers to the first period. There are medical reports exhibited to the plaintiff’s affidavit and the Campion affidavit. None refer to the first period. In the plaintiff’s supplementary affidavit the plaintiff asserts she had illnesses from or in about 2002, and that she had not had those illnesses before.
It is a significant defect in the SOC that there is no reference at all to the first period. Could the defect be cured by an amendment? There is no application to amend the SOC on foot, nor has a draft SOC been provided by the plaintiff. On 9 October 2015, the parties’ solicitors had a telephone conversation and the plaintiff’s solicitor indicated that the plaintiff intended to file an amended statement of claim.[4] The defendant’s solicitor subsequently and repeatedly followed up the plaintiff’s solicitor in writing.[5] By email dated 5 November 2015, the plaintiff’s solicitor informed the defendant that the plaintiff intended to file an amended statement of claim and that the amendments were likely to be as to the assessments and particulars of injury.[6] The email referred to the plaintiff not yet having obtained an Impairment Certificate as to her physical injuries, thus the delay. By letter dated 21 January 2016, her solicitor informed the defendant that she wished to amend the SOC to plead satisfaction of the thresholds for her claim for non-economic loss.[7] The letter also stated that the plaintiff did not allege she suffered an injury in the course of her employment and the provisions of the ACA are irrelevant.
[4] Campion affidavit, [9].
[5] Ibid [10].
[6] Exhibit ‘LBC-4’ to the Campion affidavit.
[7] Exhibit ‘LBC-9’ to the Campion affidavit.
If the SOC were amended as has been foreshadowed, could it be said to have no real prospect of success? Such a claim could potentially fall within s 14B of the WA, which the plaintiff relies upon. However, to commence such a claim, the plaintiff would require a certificate of assessment. The exhibited certificate of assessment is given by Dr Serry as a result of an examination on 25 September 2015 and is supported by a medical report dated 25 September 2015. The medical report is not in respect of the first period. It indicates it is given in response to a claim for compensation as a result of exposure to a toxic environment at the premises between 2006 and 2013, namely the second and third periods.
None of the medical certificates in evidence relate to the first period.
Without a certificate of assessment in respect of the first period, there is no real prospect of success in relation to that period. This is not a defect that can be cured by amendment.
Section 64 of the CPA is not applicable. This is not a proceeding which attracts the features referred to in JBS or Matthews v SPI Electricity Pty Ltd, both discussed above. The circumstances in which s 64 is applicable are not confined to those cases. Reference must be had to the wording of the section and whether the interests of justice, or the nature of the dispute, are such that only a full hearing on the merits is appropriate. The Court has considered whether it would not be in the interests of justice to dismiss the claim in respect of the first period when an impairment certificate is pending. However, there is no cause of action on foot regarding the first period.
Although the power to terminate proceedings summarily must be exercised with great caution, it is appropriate to exercise that power in circumstances such as these where there is no real prospect of success in respect of the first period.
Second period
In respect of the second period, paragraph 2 of the SOC alleges that the plaintiff was regularly and frequently in attendance at the premises in order to carry on the lingerie sales business operations of Versus. It is common ground that the plaintiff was an employee of Versus. The inescapable conclusion of this is that she is a ‘worker’ within the meaning of the ACA for the second period. Section 82 of the ACA stipulates that “if there is caused to a worker an injury arising out of or in the course of any employment”, then the worker will be entitled to compensation in accordance with the ACA. There is much authority on the meaning of s 82. It has been interpreted widely. The authorities indicate that it is unnecessary for there to be a causal relationship between the injury and the employment.[8] The nexus with employment may be established by being injured at the premises, even in circumstances where a third party is the landlord or managing agent.[9] The nexus with employment is established in this case, on the basis of paragraphs 2 and 6 of the SOC. The particulars of economic loss alleged in paragraph 8 also refer to the plaintiff operating a business from the premises.
[8]Hegedis v Carlton & United Breweries Ltd (2000) 4 VR 296, 298.
[9] See for instance, Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412.
A claim of occupier’s liability could be brought separately under the WA during a period when the plaintiff was an employee in respect of an injury that arises in the course of employment.[10]
[10] See ibid.
Sections 28C, 28LC and 45(b) of the WA are applicable. They have the effect that if the plaintiff has a potential claim for damages under the ACA, then the ACA applies, not the WA.
The plaintiff is barred from bringing her claim under the WA because she has not commenced the proceeding in accordance with s 134AB of the ACA. The Court of Appeal has held:
Subject to the exceptions in s 134AB, the bar on proceedings at common law is co-extensive with the entitlement to compensation under the Act.[11]
[11]Martin v Bailey [2009] VSCA 263 at [18].
Further, “the ‘gateway’ provisions limiting common law proceedings apply in the usual way to cases where injury is caused by a third party”.[12]
[12] Ibid [19].
The plaintiff did not assert that she had complied with s 134AB; she submitted that it was inapplicable. Section 134AB is applicable to the second period. The plaintiff has not complied with it and given this, has no real prospect of success in respect of the second period.
The claim in respect of the second period is not one which attracts the features referred to in JBS or Matthews v SPI Electricity Pty Ltd, both discussed above. The interests of justice do not require the matter proceed to trial in respect of the second period. The nature of the dispute in respect of the second period is not such that only a full hearing on the merits is appropriate. Section 64 of the CPA is not applicable in respect of the second period.
Third period
In respect of the third period, paragraph 6 alleges that the plaintiff suffered injuries between 2006 and June 2013 as a result of being present at the premises and thereby being exposed to a toxic environment. Accordingly, the SOC refers to the third period. There are serious deficiencies in the SOC, including insufficient material facts as to the third period and how the injuries are alleged to have arisen in that period.
There is no evidence of the plaintiff’s attendance at the premises in the third period apart from a reference that she refers to (but neither confirms nor denies) that she continued to attend the premises.[13] In paragraph 10 of her affidavit, the plaintiff deposes that she refused to go back into the premises on 26 August 2011 until remediation work was done. There is a reference to reports of mould in mid-2011. Dr Serry’s medical report of 25 September 2015 indicates that the premises were closed from May 2011 and the plaintiff was reluctant to return. In respect of the third period, the plaintiff’s counsel referred to paragraphs 13 and 14 of the plaintiff’s affidavit. The plaintiff deposes that when she discovered that there had been asbestos on the premises, she was shocked, frightened and traumatised, and that the dangers of asbestos and mould continue to play on her mind. The date the plaintiff deposes that she received the asbestos report is 13 March 2013. This is almost two years after her employment with Versus ceased.
[13] Plaintiff’s VCAT affidavit, [16].
There is no pleading in the SOC that she was at the premises in a non-work capacity. The pleadings regarding the third period also refer to the second period. Even if the pleadings in respect of the third period were cured by amendment, they have no real prospect of success. The injuries referred to above that have allegedly arisen as a result of receiving the asbestos report are inextricably linked to the second period. There is no allegation of a break in causation by a novus actus interveniens. But for being on the premises during the second period, the alleged injuries would not have arisen because the plaintiff’s concerns about the asbestos report relate to being at the premises. In addition, there is a gap of almost two years between the end of the second period and receipt of the asbestos report. Any alleged injuries in that period must have flowed from the second period.
Section 64 of the CPA is not applicable in respect of the third period. The Court refers to and repeats the reasoning above with respect to the second period.
In addition to considering whether s 64 of the CPA applies to each period, the Court has also considered whether, globally, s 64 should apply to the proceeding. It does not consider the proceeding as a whole has features which are such that it would fall within s 64.
Conclusion
Summary judgment in favour of the defendant.
The Court will hear the parties on costs.
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