Koljibabic v WMC Resources Ltd

[2001] WADC 202

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   KOLJIBABIC -v- WMC RESOURCES LTD [2001] WADC 202

CORAM:   REGISTRAR KINGSLEY

HEARD:   26 JULY 2001

DELIVERED          :   Delivered Extemporaneously on 26 JULY 2001 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 883 of 1998

BETWEEN:   SLOBODAN KOLJIBABIC

Plaintiff

AND

WMC RESOURCES LTD
Defendant

Catchwords:

Practice - Application to dismiss action for want of jurisdiction - Section 175 Workers' Compensation and Rehabilitation Act 1981 - Deemed employer

Legislation:

Mines Safety and Inspection Act 1994

Workers' Compensation and Rehabilitation Act 1981

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr G R Hancy

Defendant:     Mr D J Bishop

Solicitors:

Plaintiff:     Slater & Gordon

Defendant:     Clayton Utz

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

Rothmans of Pall Mall v Saudi Arabian Airlines [1981] 1 QB 368

Case(s) also cited:

Commonwealth v SCI Operations Pty Limited (1998) 192 CLR 285

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Grljusich v Grljusich, unreported; SCt of WA; Library No 930253; 9 May 1993

Midgley v Monger [2000] WASC 291

Muller v Dalgety & Co Ltd (1909) 9 CLR 696

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Re Monger; ex parte Rock Engineering (Aust) Pty Ltd, unreported; FCt SCt of WA, Library No 980013; 22 January 1998

Squire v Squire [1972] 1 Ch 391

Tony Sadler Pty Ltd v McLeon Nominees Pty Ltd (1994) 13 WAR 323

Webster v Lampard (1993) 177 CLR 598

Westpac Banking Corporation v Thorpe, unreported; SCt of WA; Library No 980607; 21 October 1998

1. REGISTRAR KINGSLEY: This is the defendant's application that the action be dismissed for want of jurisdiction of the Court, no leave having been obtained pursuant to s 93 of the Workers' Compensation Act.  I dismiss that application for the following reasons.

2. The first issue raised was whether this Court has jurisdiction to entertain the application.  This is because an unconditional appearance has been filed.  There always reposes in the Court a jurisdiction to entertain the question:  does a Court have jurisdiction?  As stated in Rothmans of Pall Mall v Saudi Arabian Airlines [1981] 1 QB 368 an unconditional appearance is at best a contingent waiver taking final effect only if the Court is not asked to intervene. In this case I am being asked to intervene.

3. The central issue is, in my opinion, s 175 of the Workers' Compensation and Rehabilitation Act. Section 175 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") deems, for the purposes of the Act, both principal and contractor as joint employers of a worker employed by the contractor. The section has been within the Workers' Compensation Act since 1912. The second reading speech by the Attorney‑General in 1912 refers to not allowing a principal and contractor to escape their liability; but a liability for what? The context of the Act is liability to pay compensation for the injury to a worker, and that is the context of s 175.

4. The deeming provision deems the principal and contractor as employers, but again for what purpose? In my opinion, the "and" is important. The deeming is for the purpose of being jointly and severally liable to pay compensation. I am of the opinion that s 175 has nothing to do with the issue of common law damages. The Workers' Compensation Act from its preamble of s 3 has the primary purpose of compensation. 

5. An incidental effect since 1993 within the Act is the limitation on the award of damages. In my opinion the statutory fiction of the deeming in s 175 is confined to ensuring that the principal and contractor do not escape liability for the payment of compensation. I note that the definition of "employer" in s 5 does not include "principal" nor since 1993, when limitations on the issue of damages was imposed, has the definition of "employer" been amended.

6. Defendant's counsel referred to the absurd result of the defendant being a deemed employer under s 9 of the Mines Safety and Inspection Act 1994 and not under the Workers' Compensation Act.  Defendant's counsel referred to the fact that the deemed employer cannot rely on Division 2, Part IV of the Workers' Compensation Act.  As to the first point, the defendant company is not without its procedural remedy and, as to the second, in my opinion that is a matter for the legislature.

7. I am of the opinion that s 175 does not deem an employer for every purpose under the Act. One cannot ignore the historical context of s 175 and the legal context. The historical context is that s 175 has been part of the Workers' Compensation Act when there has never been any limitation on awards of damages. The deeming could only have referred to liability to pay compensation. The legal context is that s 175 is within the Workers' Compensation Act, an Act for the purposes of compensation. Nothing in s 175 reveals a wider purpose, unlike s 93. For these reasons the application to dismiss the action for lack of jurisdiction is denied.