Kay v Pritchard Francis Pty Ltd - [2017] WADC 83

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KAY -v- PRITCHARD FRANCIS PTY LTD [2017] WADC 83

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 24 MAY 2017

DELIVERED : 21 JUNE 2017

FILE NO/S: CIV 4706 of 2016

BETWEEN: SONNY VICTOR KAY
Plaintiff
AND
PRITCHARD FRANCIS PTY LTD
First Defendant
BGC CONSTRUCTION PTY LTD
Second Defendant
HKHB ENTERPRISES PTY LTD as Trustee for B & H FAMILY TRUST t/as STUDCO
Third Defendant
S. SARICH & SONS PTY LTD
Fourth Defendant
DAVID CHEE KONG CHEONG
Fifth Defendant
ACCESS SCAFFOLDING SOLUTIONS PTY LTD
Sixth Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application to set aside default judgment

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Ms J H Craig
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     Mr C M Birbeck

Solicitors:

Plaintiff:     Shine Lawyers
First Defendant             :     Not applicable
Second Defendant         :     Not applicable
Third Defendant           :     Not applicable
Fourth Defendant          :     Not applicable
Fifth Defendant            :     Not applicable
Sixth Defendant            :     HBA Legal

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

Palmer v Prince [1980] WAR 61

DEPUTY REGISTRAR HARMAN: By an order of 7 March 2017 the plaintiff re-amended the writ by which he included a claim against the sixth defendant.
The statement of claim annexed to the writ reveals that the plaintiff was injured as a consequence of collapse of a concrete slab whilst in the course of its construction. It is alleged against the sixth defendant that it had been engaged by the third defendant to supply, install and erect the formwork deck scaffold propping system. The plaintiff alleges the sixth defendant's negligence and provides the following particulars:
1.failed to ensure the formwork was of sufficient structural integrity to hold the weight of the concrete slab when poured;
2.caused, allowed or permitted the formwork at the premises to fail and collapse when the concrete was poured, resulting in the slab collapsing;
3.failed to warn others at the premises that the formwork may not have the requisite structural integrity to hold the concrete slab when poured;
4.failed to engage an independent engineer to comment on and approve the formwork for the slab;
5.caused, allowed or permitted an unsafe workplace at the premises.
In the alternative, the plaintiff contends for the existence of a statutory duty and breach in the same terms as those outlined above.
On 9 May 2017 the plaintiff obtained judgment against the sixth defendant in default of appearance.
By application filed 18 May 2017 the sixth defendant seeks to have judgment set aside. The application was addressed by the parties in general chambers and I reserved my decision to allow for time to read the papers.
The application is supported by the affidavits of M C Wroe and C D McCarthy.
The application was presented on the basis that the judgment obtained was regular. It follows that it is for the applicant to satisfy the court that there is an issue that ought be tried, further that there is satisfactory explanation for both the failure to enter an appearance and any delay in bringing and prosecuting the application.
The applicant relies on the evidence of McCarthy, the director and company secretary of the sixth defendant to explain its default. His evidence is as follows:
2.I believe the contents of this affidavit are true. The source and grounds of my belief are my knowledge and the content of the documents I have identified.
3.Access Scaffoldings insurer has appointed HBA Legal to defend the claims made by Antony Glover and Thanijal Naprelac in relation to the concrete platform collapse that happened on 6 May 2014. …
4.I spoke to Melissa Wroe, a solicitor employed by HBA Legal on 30 March 2017. I recall that Melissa told me to let her know if I received any documents in relation to any claims made by other people.
5.When I spoke to Melissa on 30 March 2017, I had not received any documents in relation to any claims made by people, other than Glover and Naprelac.
6.About a week after speaking to Melissa, I received a telephone call from my accountant, Ivan Ashley of Ashley Morgan & Associate Pty Ltd, who advised me that he had received some documents. He told me that he had received some forms relating to the insurance case or the insurance claim for Access Scaffolding (documents).
7.The registered office for Access Scaffolding is Ashley Morgan & Associates Pty Ltd, ….
8.I collected the documents from Ivan about 5 to 7 days after he telephoned me.
9.I did not look at the documents straight away.
10.There are a number of reasons that I did not look at the documents straight away.
11.At the time I collected the documents I was working long hours at various sites.
12.My workload is higher than usual at the moment because I am working with only my colleague Paddy.
13.I have been in the process of changing accountants for the last 4 ‑ 6 weeks approximately. At the time I received the documents from Ivan, in addition to working long hours, I was also in contact with my new accountant who requested that I provide accounting relating documents such as BAS statements and previous tax statements. My new accountant told me that these need to be provided by 15 May 2017.
14.I also suffer from anxiety, I was diagnosed as suffering from anxiety since just before Christmas 2016. I have been prescribed Loxalate to help with my anxiety symptoms.
15.My anxiety symptoms mean that I can get overwhelmed at times, particularly when I am faced with several issues in my life. When I get overwhelmed, I do not always deal with things that I probably should deal with, such as paperwork.
16.I was suffering with my anxiety symptoms around the time that I received the documents from Ivan.
17.Because of how busy I am, and because of my anxiety symptoms, I deal with most of my paperwork at the end of each month.
18.When I received the documents from Ivan, I received a number of other documents from him such as accounting related documents.
19.Because I had received so many documents, I did not look at them straight away and I had planned to look at them at around the end of the month. I normally look at my paperwork around the end of each month.
20.From memory, I looked for the documents at around the end of April 2017, probably in the week of 24 April 2017. I say this because I remember reading a document about BGC and the document was dated 24 April 2017 …
21.When I did look at the documents I thought they probably related to the claims made by Glover and Naprelac. I didn't really look at the names of the claimants. I did not think that I needed to do anything urgently about the documents because I knew that Access Scaffolding's insurer had appointed HPA Legal to look after those claims.
22.I was confused about what these documents meant and if I needed to do anything with them.
23.It was difficult to keep track as there are so many different claimants who are claiming for the same incident.
24.I also received a lot of paperwork for my business at the same time I received the documents so that they got mixed up and confused with some of that paperwork.
25.My anxiety symptoms and the workload affected my ability to do anything more with the documents once I did look at them.
26.Melissa emailed me about 1 May 2017. She was arranging a time for me to attend with her to inspect the scaffolding that Sarich & Sons had in its possession. The inspection was going to happen on 8 or 15 May 2017 so I decided that I would give the documents to Melissa when I met with her …
27.Melissa then telephoned me on 8 May 2017 about the inspection to advise that it was going to be pushed back to 25 May 2017. It was then that I told Melissa that I had received the documents.
As for the content of par 2 it is not clear on what basis the deponent gives evidence. It is at best to be inferred that one of the unspecified documents was the re‑amended writ.
In her affidavit of 18 May 2017, Wroe deposes that she is a solicitor employed as an associate of HBA Legal. She goes on to state that the actions brought by Glover and Naprelac were in their infancy; as solicitors in those actions they were yet to be served with any evidence and that in those actions the sixth defendant had not filed any defences or provided discovery. She goes on to depose as follows:
37.Access Scaffolding believes it has a valid defence and that one or more of the other defendants may ultimately found liable to the plaintiff.
38.I have received limited documents about the accident and the propping system from Access Scaffolding.
39.Access Scaffolding has limited documents as most of them have been provided to WorkSafe as part of its investigation.
40.I have spoken to Craig McCarthy about the claims. Based on what he has told me, I believe that Access Scaffolding has a defence on the merits to warrant orders that default judgment be set aside.
41.Access Scaffolding was engaged by the third defendant to undertake scaffolding work at the site and was involved in the installation of the slab's propping system.
42.Access Scaffolding was not responsible for the design of the propping system.
43.The design of the propping system was provided by the fourth defendant to the third defendant, who in turn provided the design to Access Scaffolding.
44.Mr McCarthy does not know who drew the design document. The design document was provided to WorkSafe.
45.Mr McCarthy advised me that another scaffolding company, Unique Scaffolding, also supplied or erected a large portion of the propping system.
46.Mr McCarthy believes that Unique Scaffolding was engaged by the forth defendant.
47.Mr McCarthy has advised me that there are other issues that may have caused or contributed to the accident. For example, he told me that the area of the slab that failed had holes drilled in it, which weakened the slab. Access Scaffolding was not responsible for drilling the holes.
48.I have spoken to Hugh O'Sullivan, a partner of SRB Legal, solicitor for the third defendant via telephone on 30 March 2017 about the incident in general. Mr O'Sullivan advised me that prior to the incident, significant changes were made to the propping system without the third defendant's knowledge or permission. Mr O'Sullivan advised me that the third defendant believes that those changes were made at the request of the fourth defendant.
49.Mr McCarthy advised me that these changes were not made by Access Scaffolding.
50.Annexed and marked 'MCW 12' is a copy of the third defendant's defence in this action dated 22 March 2017.
51.Access Scaffolding intends to raise a similar defence to that raised by the third defendant …
The relevant parts of the third defendant's defence appear to be as follows:
4.The third defendant admits that it was engaged by the fourth defendant to, inter alia, install King Flor steel formwork decking, supplied by the fourth defendant for a suspended concrete floor, and to supply and install temporary propping sufficient to support the decking and wet concrete slab ('the works') but otherwise denies paragraph 4.4 of the statement of claim.
5.The third defendant admits that it was an occupier, albeit concurrently with others, in the period up to and including 2 May 2014, during which time the works were underway, but otherwise denies paragraph 4.5 of the statement of claim and in particular denies that it was an occupier on the day of the accident or on and subsequent to the 3 May 2014.
6.On or subsequent to the 3 May 2014, but prior to the accident, the fourth defendant caused certain modifications to the works to be carried out which the third defendant did not authorise and did not accept responsibility for.
…
It is clear from all of the above that there is no evidence to support the propositions proposed to be put by the applicant in its defence.
As to whether there is an issue to be tried the case of Palmer v Prince [1980] WAR 61 establishes that evidence is required from a witness competent to give evidence at trial.
Ultimately, there is no evidence that establishes an issue that ought be tried relating to the sixth defendant's engagement, the purpose for which it was engaged, its performance of the works or considerations that bear upon the particulars of alleged negligence and breach of duty.
It follows that the application to set aside the default judgment must fail.