Kamath v Allight Sykes, Landsdale
[2019] WADC 98
•23 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KAMATH -v- ALLIGHT SYKES, LANDSDALE [2019] WADC 98
CORAM: GETHING DCJ
HEARD: 24 JUNE 2019
DELIVERED : 23 JULY 2019
FILE NO/S: CIV 4861 of 2018
BETWEEN: RAGHAVENDRA SHIMOGA DAMODARA KAMATH
Plaintiff
AND
ALLIGHT SYKES, LANDSDALE
First Defendant
WORKCOVER ARBITRATION SERVICES
Second Defendant
Catchwords:
Practice and procedure - Whether an appearance can be signed in a firm name - Validity of indorsement on a writ - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 6 r 1(1), O 12 r 2(1)
Result:
Writ set aside and judgment entered for the first defendant against the plaintiff
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | Mr T J Passmore |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Not applicable |
| First Defendant | : | Kott Gunning |
| Second Defendant | : | Not applicable |
Case(s) referred to in decision(s):
ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 3] [2015] WASC 442
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Calabro v The State of Western Australia [2012] WASC 418
Culleton v Permanent Custodians Ltd [2018] WASC 251
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Glendinning v Cuzens [2009] WASCA 21
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hunt v Knabe [No 2] (1992) 8 WAR 96
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Kamath v National Hire Group Ltd (Allight Skyes) [2019] WADC 55
Kezic v St John of God Health Care Inc [2015] WASCA 220
Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44
Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128
Mills-Edward v Russell [2011] WADC 9
MJL v The State of Western Australia [2015] WASC 348
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509
Nobarani v Mariconte [2018] HCA 36
Rayney v State of Western Australia [No 3] [2010] WASC 83
Re Attorney-General; Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321
Robinson-Page Management Pty Ltd Atf Beggs-Page Superannuation Fund v Trackem Holdings Pty Ltd [2019] WASC 194
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Shilkin v Taylor [2011] WASCA 255
Smart v Prisoner Review Board (WA) [2012] WASC 48
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19
Tobin v Dodd [2004] WASCA 288
Trimble v Piggott (1995) 14 WAR 329
Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168
Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
Watch Tower Bible Society and Tract Society of Australia v Sahas (2008) 36 WAR 234; [2008] WASCA 51
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Western National Bank of the City of New York v Perez, Triana & Co [1891] 1 QB 304
Woodley v Woodley [2018] WASCA 200
GETHING DCJ:
In the mid to late part of 2012 the plaintiff, Mr Kamath, worked as a labourer for the first defendant, AllightSykes (being a trading name for National Hire Group Ltd). The plaintiff alleges that on 28 June 2012 he was injured whilst working for the first defendant, suffering bilateral inguinal hernias. The first defendant disputes this claim. In October 2012 the plaintiff was made redundant from the first defendant.
In December 2016 the plaintiff brought a claim against the first defendant for weekly compensation and statutory expenses pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). The plaintiff's claim was dismissed by a WorkCover arbitrator, both at first instance and on a reconsideration. The plaintiff appealed the arbitrator's decisions to the District Court, each of which was dismissed on 17 April 2019.[1]
[1] Being appeals APP 121 of 2017, 79 of 2018 and 83 of 2018 (Kamath v National Hire Group Ltd (Allight Skyes) [2019] WADC 55).
On 27 December 2018 the plaintiff filed a writ of summons (Writ) to commence the present action and served it on the first defendant. The indorsement of claim in the Writ sets out a claim by the plaintiff as against the first defendant for amounts totalling $1,336,174.75, said to be money due and owing by the first defendant pursuant to the WCIMA. The Writ has not yet been properly served on the second defendant.
By orders made on 27 March 2019 a deputy registrar set aside the Writ as against the first defendant on the basis that the indorsement on the claim was irregular. The plaintiff has appealed this decision. He has also appealed another decision of a deputy registrar in effect denying him default judgment as against the first defendant.
For the reasons which follow, the appeals should be dismissed and orders made setting aside the Writ as against the first defendant.
Procedural history
In order to place the appeal in its proper context, it is necessary to review the procedural history of the action in some detail. There is a significant amount of correspondence between the parties and the court (both registry officers and the principal registrar). I have only referred to this correspondence when necessary for the purpose of determining the appeal.
The indorsement of claim in the Writ is in the following terms:
The plaintiff's claim is for total income loss til Dec 2017 sum of $1,087,014.50 together with additional income loss til September 2018 sum of $146,560.25 and loss of superannuation due to past loss of earning capacity is sum of $102,600 as at the date of the writ, being money due and owing by the defendant 1 pursuant to Workers Compensation and Injury Management Act 1981.
The plaintiff also claims for $1,000.000 by Work Cover Arbitration Services Arbitrator or Registrar Mr S Nunn, for mental harassment, supressing facts, evidence and deliberately delaying the dispute by not following his duties. Although Arbitrator's duties (Arbitration Rules) did not permit him to refer the dispute for claim to Conciliation, he has violated his duties twice. Total Arbitration staff was involved in his intentions.
The plaintiff filed a statement of claim on 10 January 2019, as well as a second document setting out the particulars of his loss and damage pursuant to District Court Rules 2005 (WA) (DCR) r 45C.
On 15 January 2019 the plaintiff applied for judgment in default of appearance by the first defendant.[2]
[2] Folio 11.
The same day the first defendant filed a conditional appearance (Conditional Appearance). The Rules of the Supreme Court 1971 (WA) (RSC) required the first defendant to file and serve a memorandum of appearance within 10 days of service.[3] In calculating this time period, the period between 24 December and 15 January is excluded.[4] The Writ was served on 27 December 2018, albeit by email and not personal service.[5] The first defendant was thus required to file its appearance (or conditional appearance) by 25 January 2019. The appearance was filed within this time on 15 January 2019.
[3] RSC O 5 r 11.
[4] RSC O 3 r 3.
[5] Affidavit of Service lodged 15 January 2019 (folio 9); Affidavit of Trent Passmore lodged 18 January 2019, par 16 (folio 20).
By letter dated 16 January 2019, the court advised the plaintiff that judgment in default of appearance would not be entered against the first defendant as it had filed a conditional appearance. The plaintiff unsuccessfully sought to press the court to issue a default judgment in subsequent correspondence.
The effect of the Conditional Appearance was that the first defendant acknowledged service of the Writ and provided its address for service, but reserved its right to apply to the court to set aside the writ of summons on the ground of any informality or irregularity.[6] The first defendant was, however, required to apply to the court to have the question raised by the Conditional Appearance decided within 14 days from entry of the conditional appearance.[7] This it did by chamber summons filed 18 January 2019 (First Defendant's Application). In the First Defendant's Application it sought an order that the writ of summons be set aside on the grounds of informality or irregularity, as well as the costs of the application and the action. The First Defendant's Application was listed before a registrar in chambers on 6 February 2019.
[6] RSC O 12 r 6(1).
[7] RSC O 12 r 6(2).
The first defendant filed an affidavit in support of its application dated 18 January 2019 and sworn by Trent Passmore, a legal practitioner employed by the first defendant's lawyers.[8] The first defendant filed a second affidavit in support of its application dated 27 March 2019, again sworn by Mr Passmore.[9]
[8] Which I will refer to as the 'First Passmore Affidavit'.
[9] Which I will refer to as the 'Second Passmore Affidavit'.
On 28 January 2019 the plaintiff filed a chamber summons seeking the following orders (Plaintiff's Application):
A. Orders to reject the Summons to Chambers by Defendant 1 Representative (Trent Passmore | Kott Gunning Lawyers).
B. Orders to reject Conditional Appearance filed by Defendant 1, Legal representative (Trent Passmore | Kott Gunning Lawyers).
C. Orders for Judgment in default of appearance to writ.
D. The Defendant 1 pay the cost of this Application.
The Plaintiff's Application was initially listed in chambers on 14 February 2019,[10] but was then relisted to 6 February 2019 at the same time as the First Defendant's Application.[11]
[10] Letter from the court to the plaintiff dated 28 January 2019 (folio 27).
[11] Letter from Registrar Kingsley to the plaintiff dated 30 January 2019 (folio 35).
The plaintiff also filed an affidavit dated 27 January 2019 in support of the Plaintiff's Application.[12] In this affidavit, the plaintiff, in effect, contends that the Conditional Appearance was irregular as it was signed in the firm name 'Kott Gunning' and not signed by the individual legal practitioner who prepared it. On 5 February 2019 the plaintiff filed submissions in opposition to the First Defendant's Application raising the same point. This is an issue in the appeal to which I return later in these reasons.
[12] Which I will refer to as the 'Plaintiff's Affidavit'.
For the hearing on 6 February 2019, the plaintiff had on 24 January 2019 applied to the court to participate in this hearing by video link.[13] However, through inadvertence, this request was not actioned by the court. So at the hearing on 6 February 2019 the deputy registrar was not aware that the plaintiff was waiting at the Carnarvon court house for a video link to be established.[14] The hearing proceeded in the absence of the plaintiff. On the First Defendant's Application, Deputy Registrar Harman ordered that as against the first defendant the Writ be set aside, and that the plaintiff pay the first defendant's costs of the application and the action. The order was made subject to proof of service. On 6 February 2019 the first defendant filed an affidavit of Mr Passmore deposing as to proof of service. The Plaintiff's Application was not the subject of any order on 6 February 2019.
[13] Folio 23.
[14] See the letter from the Principal Registrar to the plaintiff dated 13 February 2019 (folio 68).
The plaintiff then raised with the court in correspondence the fact that the video link had not been established as requested.[15] In response, the court relisted the First Defendant's Application and the Plaintiff's Application before Deputy Registrar Hewitt on 14 February 2019.[16] The plaintiff appeared by audio link at this hearing. Deputy Registrar Hewitt dismissed the Plaintiff's Application and ordered the plaintiff to pay the costs of the first defendant.[17] He relisted the First Defendant's Application before Deputy Registrar Harman on 27 March 2019, and gave the plaintiff leave to appear by video link at that hearing.[18]
[15] Letter dated 6 February 2019 (folio 59).
[16] Letter dated 13 February 2019 (folio 79).
[17] The extracted order is at folio 81.
[18] See folio 108.
On 22 February 2019 the plaintiff filed an appeal notice from the decision of Deputy Registrar Hewitt on 14 February 2019 dismissing the Plaintiff's Application (First Appeal Notice).[19]
[19] Folio 94.
The First Defendant's Application came before Deputy Registrar Harman on 27 March 2019. The plaintiff appeared by video link. Deputy Registrar Harman confirmed the orders made on 6 February 2019 setting aside the Writ as against the first defendant and ordering the plaintiff to pay the first defendant's costs of the application and the action. Formal orders were extracted in these terms on 3 April 2019.[20]
[20] Folio 124.
On 4 April 2019 the plaintiff filed an appeal notice from the decision of Deputy Registrar Harman on 27 March 2019 (Second Appeal Notice).[21]
[21] Foilo 127.
There was then a case management hearing in chambers on 10 April 2019 before Deputy Registrar Hewitt at which the only order made was to adjourn the case management hearing sine die.[22]
[22] Foilo 123.
On 15 April 2019 the plaintiff filed an appeal notice in relation to the hearing on 10 April 2019 (Third Appeal Notice).[23] The orders sought were:
A.Orders to list Plaintiffs Application before a judge at an earliest date after allowing all the Parties to file written submissions.
B.Orders to accept Writ of Summons against both defendants.
C.Orders to reject Chamber summons made by First defendant 1, Legal representative (Trent Passmore | Kott Gunning Lawyers), on 18-01-2019
D.Orders to reject Conditional Appearance filed against the Supreme Court Rules by Defendant 1, legal representative (Trent Passmore | Kott Gunning Lawyers).
E.Orders for Judgement in default of appearance to writ.
F.The Defendant 1, pay the cost of this Application and related Application.
[23] Folio 137.
Issues in the appeal
I have treated each of the First Appeal Notice, the Second Appeal Notice and the Third Appeal Notice as being before me for determination.
Each appeal is by way of a new hearing of the matter that was before the deputy registrar.[24] It involves a complete de novo review.[25] In essence I am to treat the First Defendant's Application and the Plaintiff's Application as if each was before the court for the first time, save that the plaintiff as party appealing has the right as well as the obligation to open the appeal.[26] There is no requirement on the plaintiff, as the party who lodged the appeal, to show that either deputy registrar made an error in any of the decisions under appeal.
[24] DCR r 15(6).
[25] Briggs v Glentham Pty Ltd(1992) 8 WAR 339, 349 - 350 (Malcolm CJ, with whom Pidgeon and Rowland JJ agreed); Hunt v Knabe [No 2] (1992) 8 WAR 96, 109 - 110 (judgment of the court); Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28; Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128 [8]; Kezic v St John of God Health Care Inc [2015] WASCA 220 [42] (reasons of the court).
[26] Hazart (28).
On 3 June 2019 the plaintiff filed submissions in the appeals. On 21 June 2019 the first defendant filed submissions in the appeals. At the conclusion of the hearing before me on 24 June 2019 the plaintiff raised the concern that he did not feel that he had been given sufficient opportunity to respond to the issues raised in the first defendant's submissions. Given how close to the hearing the first defendant filed its written submissions, I gave the plaintiff until 1 July 2019 to file supplementary submissions. He filed those submissions on 1 July 2019.[27] The plaintiff also filed a number of other documents after the hearing, including an application for leave to amend the indorsement to the writ. I have not taken any of these documents into account.
[27] Folio 167.
From the written submissions filed by each party and from the oral submissions at the hearing before me on 24 June 2019, four issues arise for determination:
•Was the Conditional Appearance filed in accordance with the RSC?
•Does the indorsement to the Writ comply with the RSC?
•If the indorsement to the Writ does not comply with the RSC, should the plaintiff be given leave to amend the Writ?
•What final orders are appropriate?
In dealing with these issues, I recognise that the plaintiff is a litigant in person. As such, he is entitled to some leniency in relation to compliance with the court rules.[28] I approach the documents in which he articulates his claim with some flexibility.[29] I need to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[30] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[31] In Re Attorney-General; Ex parte Skyring, [32] Kirby J stated:
[I]t is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not previously been seen and which may have merit … Vigilance, and not impatience, is specially required where that person is not legally represented.
[28] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[29] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[30] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
[31] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim [21]; Glew [10]; Tobin [14].
[32] Re Attorney-General; Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321, 323 (Kirby J).
At the same time, I also need to ensure that any latitude given to the plaintiff as a litigant in person does not deprive the first defendant of its rights to procedural fairness and a fair hearing.[33]
[33] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 200 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
Was the Conditional Appearance filed in accordance with the RSC?
As I have already indicted, the plaintiff has taken issue with the fact that the Conditional Appearance was signed on behalf of the firm, Kott Gunning, and not an individual practitioner.
An appearance must be in the form of DCR Form 1AA[34] and must be 'signed by ... the practitioner who acts for the defendant'.[35] The Conditional Appearance was filed electronically. In this regard, DCR r 20(3) provides:
(3)If the rules of court require a document, before it is filed, to be signed by or on behalf of the person filing it and the document is being filed electronically –
(a)the document need not be signed by that person; and
(b)the person filing the document electronically must ensure that the electronic version of the document, instead of showing a signature at any place where a signature is required, states the name of the person whose signature is required at the place.
[34] DCR r 22A.
[35] RSC O 12 r 2(1).
The electronically lodged Conditional Appearance was marked as having been signed by 'Kott Gunning'.
There is no requirement within either the RSC or the DCR that an individual legal practitioner must sign court documents, as opposed to the firm of legal practitioners acting for a party.[36] Further, signing court documentation in the name of a firm of legal practitioners is a convenient method to denote those persons who compose the firm at the time the firm name is used.[37]
[36] Mills-Edward v Russell [2011] WADC 9 [10] (Davis DCJ).
[37] Western National Bank of the City of New York v Perez, Triana & Co [1891] 1 QB 304, 314 (Lindley LJ).
Accordingly, the Conditional Appearance, being signed in the firm name of the first defendant's legal practitioners, was filed in accordance with the DCR and RSC. There is no basis to set it aside. Consequently, the plaintiff has not established a right to default judgment against the first defendant.
It follows that the Plaintiff's Application should be dismissed.
Does the indorsement to the Writ comply with the RSC?
A writ 'must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action'.[38] The failure properly to endorse the claim on a writ is an irregularity.[39] More specifically, an indorsement which 'does not put the facts in a recognisable legal framework showing how the [plaintiff's] claims arise and the relationship between the claims and the loss' does not comply with RSC O 6 r 1(1).[40]
[38] RSC O 6 r 1(1).
[39] RSC O 2 r 1; Glendinning v Cuzens [2009] WASCA 21 [31] (Newnes AJA, with whom Pullin JA agreed).
[40] ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [14], [18] (McLure J, with whom Wheeler J agreed); Robinson-Page Management Pty Ltd Atf Beggs-Page Superannuation Fund v Trackem Holdings Pty Ltd [2019] WASC 194 [27] (Whitby AM).
'The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula'.[41] It is 'not something that can be reduced to hard and fast rules'.[42] The indorsement should be read generously, not narrowly.[43] Relevant information 'can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole'.[44] The plaintiff is not required to plead a cause of action.[45] Rather, it 'is to be expected that an indorsement will cover a narrower factual field and be of a greater level of generality than a statement of claim'.[46]
[41] ABB Service [11].
[42] Glendinning [28].
[43] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 3] [2015] WASC 442 [8] – [14] (Tottle J); Rayney v State of Western Australia [No 3] [2010] WASC 83 [36] (Martin CJ).
[44] ABB Service [11]; Watch Tower Bible Society and Tract Society of Australia v Sahas (2008) 36 WAR 234; [2008] WASCA 51 [16] (Pullin JA).
[45]Watch Tower [18], [45] (EM Heenan AJA); Belgravia Nominees [15].
[46] Belgravia Nominees [15].
One important factor is whether the indorsement is sufficient to meet the three important functions which it serves, being that:[47]
1.it informs the defendant of the nature of the claim made and the relief sought so as to enable the defendant to determine whether he or she should enter an appearance and, if so, whether it should be a conditional or unconditional appearance;
2.it enables the determination, for the purposes of the relevant Limitation Act, of whether a cause of action is contained in the writ, as the Limitation Act is concerned with the date upon which an action is commenced. A cause of action in this context means a factual situation which will entitle a person to approach a court for relief …
3.it sets out the metes and bounds within which the statement of claim must be framed; O 20 r 2(2) provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
[47] Glendinning [29]; ABB Service [7] – [10].
The first defendant asserts that the Writ does not disclose a cause of action against it which can be pursued against it in the District Court. This is for two reasons. The first is the nature of the claim described in the indorsement does not disclose a cause of action. The second is that, if it does, the cause of action is not one that can be pursued in the District Court as it is outside the monetary jurisdiction of this court.
The nature of the claim described in the indorsement to the Writ as against the first defendant is that it is for 'total income loss till Dec 2017 sum of $1,087,014.50 together with additional Income Loss till Sept 2018 sum of $146,560.25 and Loss of superannuation due to past loss of earning capacity is sum of $102,600 as at the date of the writ, being money due and owing by the defendant 1 pursuant to Workers Compensation and Injury Management Act 1981'. The claim assumes that the quantum owed has been fixed, and that the first defendant is under a legal obligation to pay this amount.
However, the WCIMA does not give a worker a right to commence a cause of action in the District Court, or any court for that matter, to recover income which the worker asserts he or she has lost. It does not create a legal obligation on an employer to pay money to a worker which can be the subject of a claim in the District Court (or indeed any court). Rather, the WCIMA creates a statutory scheme pursuant to which a worker who has been injured may claim compensation from his or her employer as set out in WICMA sch 1 by complying with the procedures set out in the WICMA.[48]
[48] WICMA s 18.
An injured worker does have a cause of action against his or her employer where the worker asserts that the employer breached the common law duty of care it owes the worker and that the breach has caused the worker to sustain an injury from which the worker suffered loss and damage.[49] This is a personal action which can be brought in the District Court.[50] This cause of action exists at common law independently of the provisions of the WICMA, and unless expressly provided, is not affected by the provisions of the WICMA.[51] However, this cause of action is not that which is asserted in the indorsement to the Writ. There is no mention of an accident, or even of an injury. Rather, as I have said, it is a cause of action for money due and owing under the WICMA. As there is no such cause of action created in the WICMA, the indorsement is defective as it does not put the facts in a recognisable legal framework showing how the plaintiff's claim arises and the relationship between the claim and the loss.[52] It identifies no viable cause of action or legal wrong suffered by the plaintiff which can be pursued in this court against the first defendant.[53]
[49] See for example: Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44 [26] (McHugh, Gummow, Hayne & Heydon JJ).
[50] District Court of Western Australia Act 1969 (WA) (DCA) s 50(1)(a), s 50(2).
[51] WICMA s 86.
[52] ABB Service [14].
[53] Culleton v Permanent Custodians Ltd [2018] WASC 251 [56] (Allanson J).
As to the second reason, the general position is that the District Court only has jurisdiction in relation to a personal action where the amount, value or damages sought to be recovered is not more than the jurisdictional limit, currently $750,000.[54] Where the claim is in relation for damages in respect of bodily injury (such as a cause of action in negligence), this jurisdictional limit does not apply.[55] The claim currently endorsed does not purport to be for damages in respect of a bodily injury. Rather it is in the nature of an action to recover a debt as it is for 'money due and owing' well in excess of $750,000. However, if there was a valid claim for money due and owing in excess of the jurisdictional limit, the appropriate course would not be to strike out the indorsement, but to transfer the action to the Supreme Court pursuant to DCA s 77.[56]
[54] DCA s 50(1)(a).
[55] DCA s 50(2).
[56] Trimble v Piggott (1995) 14 WAR 329, 331, 332 (Malcolm CJ, Kennedy & Pidgeon JJ).
There is a subsidiary reason why the indorsement is defective. This is because it does not contain any information from which the first defendant is able to discern the date on which the cause of action is said to have accrued. This means that it is not possible for the first defendant to form a view as to whether the relevant limitation period for the plaintiff's cause of action has expired; 'there should be sufficient factual information in the indorsement to predetermine the limitation outcome'.[57] However, if this was the only defect it could be readily cured by allowing the plaintiff to amend the Writ.
[57] ABB Service [17].
Be that as it may, it remains the position that indorsement on the Writ as it currently stands is defective.
If the indorsement to the Writ does not comply with the RSC, should the plaintiff be given leave to amend the Writ?
Having reached the conclusion that indorsement is defective as regards the first defendant, the question become what consequences should flow from this conclusion. It is open to the court to set aside and strike out the writ, and enter judgment for the first defendant.[58] This is the course pressed by the first defendant. However, it is also open to the court to allow the plaintiff to amend the indorsement.[59]
[58] RSC O 6 r 1(1); O 20 r 19(1); ABB Service [19].
[59] RSC O 6 r 1(2), O 20 r 19(1); Glendinning [31]; ABB Service [20], [23].
In Glendinning v Cuzens Newnes AJA made the following observations about the exercise of the discretion in RSC O 6 r 1(2):[60]
There can, of course, be no inflexible rule as to the exercise of the discretion under O 6 r 1(2). But in the exercise of the discretion the lodestar must always be what the interests of justice require in the particular circumstances of the case. What will be appropriate in a particular case will necessarily depend upon the circumstances of the case, but to set aside a writ may have significant consequences, particularly in relation to the plaintiff's position in relation to a limitation period, and it is therefore a step to be taken only where it is necessary in the interests of justice.
Indeed, it has been suggested that a writ should only be set aside by reason of defective or irregular indorsement where the indorsement shows that the action is an abuse of process: Pontin v Wood [1962] 1 QB 594. I would not be inclined to limit the discretion in that way, but, in my view, where an indorsement of claim is deficient the plaintiff should ordinarily be allowed a reasonable opportunity to put it into a proper form, so long as that can be done without irremediable prejudice to the defendant. In the absence of such prejudice, little purpose is likely to be served by setting aside the writ and leaving it to the plaintiff to commence a fresh action (if that course is still open). The consequence is likely to be simply that further time will be lost and more expense incurred without any significant countervailing benefit. Such a course would be inconsistent with the stipulation, stipulation, contained in O 1 r 4B, that the practices and procedures of the court are to be applied so as best to ensure the just, efficient, and timely determination of litigation at a cost affordable to the parties.
Where the relevant limitation period has, or may have, expired after the writ was issued, the consequence that the plaintiff will, or may, be left without a remedy if the writ is set aside is an important factor to be weighed in the balance in determining where the interests of justice lie.
[60] Glendinning [33] – [35]. See also: Robinson-Page [29]; MJL v The State of Western Australia [2015] WASC 348[25] (Allanson J); Calabro v The State of Western Australia [2012] WASC 418 [19] (Beech J).
I add to this the comments made above as to the latitude to be given to a litigant in person. Consequently, and favourably to the plaintiff, I need to inquire whether the plaintiff has a tenable cause of action against the first defendant which he could bring in the District Court and which the interests of justice require him to be given an opportunity to set out by amending the indorsement to the Writ. The nature of such a cause of action is straight forward, being a cause of action for loss and damage sustained as a result of the first defendant breaching its duty of care to the plaintiff as its employee.
However, as the first defendant submits, there are two hurdles which the plaintiff would face if it asserted this cause of action. The first is that the defendant has failed to adhere to and satisfy the requirements set down in WICMA s 93K and s 93L. The second is because any relevant limitation period must have expired.[61] It makes logical sense to deal with the second hurdle first.
[61] First defendant's submissions filed 21 June 2019, par 24.5 (folio 157).
As to the second hurdle, as I have noted, it is unclear from the indorsement what event is said to give rise to the cause of action. In oral submissions, the plaintiff confirmed that it was the same accident said to found his WorkCover claim. This accident occurred on 26 June 2012. In any event, the evidence before the court is that the plaintiff ceased employment with the defendant in October 2012.[62]
[62] Second Passmore Affidavit, par 12.
'An action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued'.[63] As to when the cause of action accrues, Limitation Act 2005 (WA) (LA) s 55(1) provides:
(1)A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs -
(a)the person becomes aware that he or she has sustained a not insignificant personal injury;
(b)the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.
[63] Limitation Act 2005 (WA) s 14(1).
The plaintiff obtained a first medical certificate in relation to his alleged work place injury on 5 July 2012.[64] There is nothing in the other evidence before the court to suggest that the cause of action accrued on any later date for the purposes of LA s 55. So the three year limitation period was long expired by the time the Writ was filed on 27 December 2018.
[64] First Passmore affidavit, page 15.
Further, the limitation period is not displaced by the regime in the WCIMA.[65] Additionally, there is nothing in the affidavit evidence before the court to suggest any possible basis for the plaintiff to be able to utilise any of the provisions in the LA which allows the court to extend the limitation period.[66] Nor is it a case in which the limitation period had not expired at the commencement of the action, but had expired by the time any application to amend could be made.[67]
[65] Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 [29] (judgment of the court).
[66] For example, LA s 38 where the failure to commence the action was attributable to fraudulent or improper conduct of the defendant.
[67] See generally: Belgravia Nominees [8] – [14].
Even if there was another type of personal action which the plaintiff could assert against the first defendant, for example breach of employment contract, this type of action would have a limitation period of six years.[68] Assuming that the cause of action arose on the last day of employment in October 2012, it still would have expired by the time the writ was filed on 27 December 2018.
[68] LA s 13(1).
I am conscious that the High Court in Wardley Australia Ltd v State of Western Australia[69] thought it generally undesirable to resolve limitation issues in interlocutory proceedings:
We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.
[69] Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ); Belgravia Nominees [20].
If there was any doubt whatsoever, the court could grant leave to amend expressly reserving to the first defendant the right to argue the limitation point at trial.[70] However, in my view there is no doubt. On the materials before the court, this is the 'clearest of cases' as required by the High Court.
[70] ABB Service [23]; Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168 [42] (Pullin JA).
The other hurdle the plaintiff faces is that the WCIMA places strict limits on when a worker can bring an action for damages for negligence against his or her employer arising out of a workplace injury.[71] The potential common law cause of action in negligence would fall within this regime of limitation, with the consequence that the District Court is not to award damages to a person contrary to the applicable provisions of the WCIMA.[72] The prohibition is thus on the awarding of damages, and not on the commencement of an action in which those damages are sought.
[71] WCIMA pt IV div 2.
[72] WCIMA s 93C.
The regime is conveniently summarised by the Court of Appeal in Thomas Peacock & Sons Pty Ltd v Abreu:[73]
Under s 93K(4), an injured worker can only be awarded common law damages against an employer if the worker elects to retain the right to do so. The right to elect only arises if the worker and the employer agree that the degree of the worker's permanent whole of body impairment is at least 15% or the impairment has been so assessed by an approved medical specialist, and the Director has, at the worker's written request, recorded that agreement or assessment: s 93L(2). (The degree of permanent whole of body impairment is evaluated pursuant to s 146A and s 146C: s 93H.)
If a claim for weekly compensation has been made with respect to the injury, the election to retain the right to seek damages cannot be made after the 'termination date': s 93L(4). The 'termination date' is one year after the date on which the claim for weekly compensation was made (s 93M(1)), unless the Director extends the time under s 93M(4). One of the circumstances in which the Director may extend the time is where an approved medical specialist has certified that the worker's condition has not sufficiently stabilised to allow an assessment to be made as to whether the worker's impairment is at least 15%: s 93M(4)(a). (An 'approved medical specialist' is a medical practitioner who has been designated as such by WorkCoverWA by order published in the Government Gazette: s 146F(1).)
Once the Director gives the worker notice that the worker's election to retain the right to seek damages has been registered, the worker must commence proceedings for damages within 30 days: s 93K(4).
The effect, therefore, of s 93K(4) is that no award of damages can be made unless by the termination date the worker has elected to retain the right to seek damages and, within the 30-day period after notice of registration of that election, has commenced an action for damages ...
…
The evident purpose of div 2 of pt IV of the Workers' Compensation Act is to deter small, disproportionately costly, claims for damages being brought in respect of workplace accidents. To that end, it provides that a worker cannot recover an award of damages unless their injury meets the statutory threshold, in this instance 15% of whole of body impairment. The procedure set out in div 2 is directed to ensuring that an injury meets the statutory threshold before proceedings are commenced. The election by a worker to 'retain' his or her right to damages can only be made once it has been determined that the injury meets the threshold. Once that has been determined and the election registered, it is then incumbent upon the worker to commence any legal proceedings promptly (that is, they must be commenced within the 30-day period after notice that the election has been registered), failing which the court will have no authority to award damages.
[73] Thomas [25] – [28], [30].
The plaintiff has not complied with the requirements set out in the WCIMA.[74] The effect is that even if the plaintiff were able to commence an action against the first defendant for damages for breach of duty of care as an employer, the District Court is precluded from awarding him any damages. The action would be of no practical consequence and thus would be seriously and unfairly burdensome to the first defendant, which is sufficient for it to be an abuse of the processes of the court. [75]
[74] First Passmore Affidavit, par 29.
[75] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [8] (Buss JA, with whom Murphy JA & Chaney J agreed).
In my view, the deficiencies in the indorsement on the Writ are not capable of being cured by appropriate amendments.[76] No substantial injustice would be done if the action as against the first defendant is brought to an end.[77] In summary, this is because if the Writ was amended to express a cause of action in negligence, the limitation period would have expired before the commencement of the action and, in any event, the District Court would be precluded from awarding the plaintiff any damages in that action.
[76] Glendinning [44].
[77] Glendininng [48].
What final orders are appropriate?
For the reasons set out above, the indorsement in the Writ does not comply with RSC O 6 r 1(1) and should be set aside, the Writ should struck out, and the plaintiff should not be given leave to amend.
I am conscious that a decision not to allow the plaintiff leave to amend the indorsement in effect summarily determines the action. There are two general themes which permeate applications to summarily determine a civil action. The first is that 'the exercise of powers to summarily terminate proceedings must always be attended with caution'.[78] The second is certainty of outcome:[79]
It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant… should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways … but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
[78] Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24] (French and Gummow JJ). See also: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (judgment of the court); Shilkin v Taylor [2011] WASCA 255 [40] (Newnes JA, with whom Pullin and Buss JJA agreed).
[79] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow and Hayne JJ) (references omitted). See also: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne & Crennan JJ); Spencer [24].
These general principles need to be applied in the context of the specific power being exercised.[80] In the present context, even proceeding with due caution, I have the high degree of certainty about the ultimate outcome of the any action the plaintiff could allege against the first defendant if it were allowed to go to trial in the ordinary way to make it appropriate the summarily determine this action.
[80] See generally: Spencer [49] – [57] (Hayne, Crennan, Kiefel & Bell JJ); Shilkin [23] – [41].
There is a further reason why it is necessary in the interests of justice to not allow the plaintiff the opportunity to amend the indorsement in the Writ.[81] This is because the action commenced by the Writ is an abuse of the processes of the court. In the Writ, the plaintiff in essence seeks to have the first defendant, his former employer, pay him the amounts he would have been entitled to had his claim for compensation pursuant to the WICMA succeeded in its entirety. However, as I have already observed, he failed to establish his claim in arbitration proceedings under the WICMA, and his appeals from those decisions have been dismissed. In the present action, as defined by the indorsement in the Writ, the plaintiff is, in substance, seeking to re-litigate this issue which has been litigated and determined against him both in the arbitration proceedings under the WCIMA and on appeal in this court. This amounts to an abuse of the processes of the court.[82]
[81] Glendinning [33] – [35].
[82] Sheraz [8] - [11].
There should be judgment for the first defendant as against the plaintiff.
The appropriate orders are that:
(a)the plaintiff's chamber summons dated 28 January 2019 be and is hereby dismissed; and
(b)on the first defendant's application dated 18 January 2019, as against the first defendant, the writ of summons be set aside and the action be and is hereby dismissed.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate22 JULY 2019
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