Jussy v Mailton Holdings Pty Ltd
[2010] VCC 1500
•5 November 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-03863
| BIMLA JUSSY | Plaintiff |
| v | |
| MAILTON HOLDINGS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 October 2010 |
| DATE OF JUDGMENT: | 5 November 2010 |
| CASE MAY BE CITED AS: | Jussy v Mailton Holdings Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1500 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1958 – claim for statutory benefits – plaintiff injured in fall on stairs – denial that plaintiff was employed at the time – application to file and serve an amended statement of claim – proposed amendment based on common law duty and occupier’s liability with damages sought in this regard – previous decision of Magistrates’ Court – whether application for such leave should be granted – future conduct of the matter.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Cvjeticanin | Arnold Thomas and Becker |
| For the Defendant | Mr J. O’Brien | Thompsons Lawyers |
| HIS HONOUR: |
General background
1 In this matter, I am asked to determine a preliminary point which centres upon a proposed amendment to the statement of claim; leave to file and serve same; and the future conduct of the matter. The litigation, pre-amendment, was commenced pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”).
2 Mr M. Cvjeticanin of counsel appeared on behalf of the plaintiff. Mr J. O’Brien of counsel appeared on behalf of the defendant. No oral evidence was adduced, and the matter proceeded by way of submissions involving referral to certain documents. The dispute involved another slightly unusual point (of which there seem to have been a number recently) and I am grateful to counsel for their helpful submissions.
Factual background
3 The following factual background is set out solely for the purposes of determining this preliminary point. As stated, no oral evidence was adduced, and these Reasons for Judgment are made on the basis of matters related by counsel and the documents to which they referred me.
4 The plaintiff alleges that she was injured in the course of her employment with the defendant on or about 14 March 2008. The essential injury is to the back, and there are various sequelae. The plaintiff alleges that she suffered the pleaded injuries when she fell whilst descending stairs. Her claim for statutory benefits has been rejected.
5 The defendant denies that the plaintiff was its employee. It asserts that the plaintiff was on the premises essentially as an invitee. In essence, it asserts that the plaintiff was being shown around the premises at a time when the parties were considering whether employment would occur. In other words, she was being taken on a type of guided tour of the premises so that she could see what was involved in the work, and, as I understand the allegation, the defendant would then decide whether or not to offer employment to the plaintiff and the plaintiff would consider whether or not to accept the offer. Hence, the defendant denies that a contract of employment had been entered into or had commenced.
6 In turn, the plaintiff is alleging that she had in fact commenced her employment with the defendant, this being her first working day, and she having started to perform her duties at approximately 6am on that day. When the fall occurred, she was being shown downstairs for the purposes of her morning tea break.
7 That a fall did occur and that the plaintiff suffered injury as a result was not disputed for the purposes of the present argument.
8 It would seem that, after those advising the plaintiff became aware of the nature of the defence taken and of the basic reason for the rejection of her claim, it was decided that the plaintiff should rely upon alternative grounds – namely, breach of duty by the defendant of its common law duty to take reasonable care and its duty as an occupier pursuant to Part IIA of the Wrongs Act 1958. Doubtless, this was an attempt to cover the situation that might arise should it be found that the plaintiff’s contract of employment had not commenced. Alternative relief on the basis of breach of duty and occupier’s liability could be sought.
The existing pleadings
9 The plaintiff had commenced proceedings by way of a complaint issued out of the Magistrates’ Court of Victoria to which was attached a statement of claim. This pleaded that the plaintiff was at all material times employed by the defendant as a factory worker and was acting within the course and scope of her employment. It is further pleaded that the plaintiff was on the premises in the course of her employment with the defendant on 14 March 2008, that she fell upon the staircase on that day, and that the injury arose out of or in the course of her employment, which employment was a significant contributing factor to the injury. Incapacity had resulted from or had been materially contributed to by the injury. A claim form had been served on 28 March 2008 and rejected on 29 April 2008. Apart from a challenge to the validity of the notice, the plaintiff sought statutory benefits.
10 The defence could be described as being somewhat global in that only incorporation, service of the claim, rejection and the conduct of conciliation were admitted. Amongst a considerable number of non-admissions and denials, it pleaded that the plaintiff was not a worker within the meaning of the Act.
11 The plaintiff’s complaint seems to have been issued on approximately 23 July 2009, whilst the defence was received on 29 September 2009.
The proposed amendments
12 The amendments proposed to the statement of claim cover some issues in addition to those the subject of the present dispute. However, the relevant amendments could be summarised as follows. The proposed paragraphs 4A and 4B plead that the plaintiff was on the premises with the permission of the defendant and that, in the alternative to the allegation that the plaintiff was at all times employed by the defendant, the defendant owed to the plaintiff a duty to take reasonable care to avoid the risk of foreseeable injury at common law and pursuant to the Wrongs Act in its role as occupier.
13 An additional paragraph, namely paragraph 14, was added to the proposed amended statement of claim. This added that, in the alternative to the various paragraphs dealing with injury arising out of or in the course of employment, the injury was caused by the breach of the defendant’s common law duty and/or the breach of the defendant’s duty as occupier. Particulars in relation to the condition of the premises, breach of duty and the like are set out. The prayer for relief has been amended by the addition of a claim for damages.
The earlier hearing
14 The application to amend the statement of claim to include a claim for damages as set out above came on before Magistrate Wright on 9 April 2010, he delivering his written Ruling on 12 April 2010, although it is apparent that he delivered an oral ruling on the earlier date.
15 His Honour ruled that the plaintiff did not have leave to amend the statement of claim. One of the reasons for this was that it was foreshadowed that there would be an application to transfer the proceedings to the County Court in any event. If the amendment was allowed, the matter would be unable to proceed in the Magistrates’ Court for a number of reasons, one being that the claim for damages was unlimited. His Honour also pointed out that the defendant may require separate representation in its capacity as occupier as this would not involve the Victorian WorkCover Authority. His Honour thought that the proposed amended proceeding may be too complicated and unwieldy to proceed. Bearing in mind jurisdictional limits and the proposed transfer to the County Court, he concluded that there seemed to be little point in allowing the proposed amendment.
16 As is apparent, the matter has now been transferred to this Court.
Ruling 17 Whilst I am not bound by the decision in the Magistrates’ Court and, upon consideration of the careful reasons spelt out by His Honour as to why it was inappropriate for him to allow the proposed amendments, I do not consider that any issue estoppel exists, I agree with some of the sentiments expressed by him. 18 In my opinion, the issuing of an amended statement of claim in the proposed form could lead to a very complicated and unwieldy proceeding. There would be even further complications in this Court. For example, the defendant in its role as occupier might seek trial by jury, which would not be appropriate for that part of the claim involving statutory benefits. If that part of the claim for statutory benefits against the defendant in its role as employer was heard first, the insurer of the defendant, in its role as occupier, might also wish to be heard. It may wish to attempt to persuade the Court that the plaintiff is in fact a worker in an attempt to avoid any responsibility on its part as occupier. These are just a couple of examples of the difficulties that may be encountered, and that is before one turns to a consideration of whether a statement of claim in which statutory benefits are sought pursuant to the Act can or should also include a claim for damages totally unrelated to the Act. 19 However, I am also aware, as was Magistrate Wright, of the desirability of avoiding the situation where the plaintiff may “fall between two stools”. Accordingly, I rule that the plaintiff not have leave to file and serve an amended statement of claim as proposed and my reasons for so doing include the fact that I consider the proper way for this matter to proceed is as follows. 20 If the plaintiff wishes to seek relief of the type foreshadowed and based upon the defendant’s common law duty and duty as occupier, a further writ and statement of claim should be issued. In order to avoid confusion, it would also seem to me to be desirable that, in the existing litigation for statutory benefits, the title of the defendant be amended to “Victorian WorkCover Authority” or, at least, that the Victorian WorkCover Authority should be added as a party. There seems to me to be no reason why this cannot be done – see the judgment of Phillips JA in Victorian WorkCover Authority v Brewster [2001] VSCA 30. When the proceeding against Mailton Holdings Pty Ltd as occupier has been issued, and this may involve the taking of the appropriate steps pursuant to Part VBA of the Wrongs Act, what seems to me to be the essential preliminary point as to whether or not the plaintiff was, at the relevant time, subject to a contract of employment and was a worker within the meaning of the Act should be determined at the outset, with all parties who wish to be heard being present. This aspect of the dispute should be heard as a preliminary point, and, lest there be any doubt, the parties should agree to abide by the result. I might say that an issue such as this, and bearing in mind the complicated state of the law surrounding it, is, in my opinion, clearly not a question for a jury. A Judge, sitting alone, should hear all evidence and submissions bearing upon the critical question of whether or not the plaintiff was a worker within the meaning of the Act at the time of suffering the injury. 21 When that question has been determined, the further conduct of the matter can be arranged accordingly. The existence of two separate causes of action will assist in this regard. It may well be that, following determination of the preliminary point, one of the two proceedings can be dismissed or otherwise resolved. 22 I shall hear the parties as to any further steps which are to be taken at this stage or as to any further orders that are required.
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