Laws v Darsi Pty Ltd
[1999] WADC 126
•22 NOVEMBER 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: LAWS -v- DARSI PTY LTD & ANOR [1999] WADC 126
CORAM: WISBEY DCJ
HEARD: 16 NOVEMBER 1999
DELIVERED : 22 NOVEMBER 1999
FILE NO/S: CIV 6066 of 1994
BETWEEN: EDMOND DOUGLAS LAWS
Plaintiff
AND
DARSI PTY LTD
First DefendantDEAN HUNTLEY AND SUSAN LEE HUNTLEY
Second Defendants
Catchwords:
Practice and procedure - Application to set aside judgment under slip rule alternatively pursuant to inherent power of Court.
Legislation:
Rules of Supreme Court O21 r10
Workers Compensation and Rehabilitation Act 1981 ss5 and 93D
Result:
Application dismissed.
Representation:
Counsel:
Plaintiff: Mr D I Connor
First Defendant : Mr P V Batros
Second Defendants : Mr A Rumsley
Solicitors:
Plaintiff: Hoffmans
First Defendant : Godfrey Virtue & Co
Second Defendants : McKie & Associates
Case(s) referred to in judgment(s):
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Storey & Keers Pty Ltd & Anor v Johnstone (1987) 9 NSWLR 446
Case(s) also cited:
Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
Climaze Holdings Pty Ltd v Dyson & Anor (1995) 13 WAR 487
DDB Needham Sydney Pty Ltd v Elyard Corporation Pty Ltd (1995) 131 ALR 213
Fox v Commissioner for Superannuation, unreported [1999] FCA 372; 8 April 1999
Hatton v harris [1892] AC 547
Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642
La Macchia v Spera [1980] WAR 224
Marshall v Whittakers Building Supply Co (1963) 109 CLR 210
MGICA Ltd v Mid-West Finance (Act) Pty Ltd; unreported; FCA; WAG 134 of 1990; 25 February 1991
Monaco v Anedo (1994) 13 WAR 522
Ninnis v Miller [1905] VLR 669
Qantas Airways Ltd v Cameron (1996) 66 FCR 246
Re Wallace, unreported [1997] 388 FCA; 19 May 1997
Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997
Stevenson, Jordan & Harrison Ltd v Mcdonald & Evans (1952) 1 TLR 101
Taylor v Taylor (1979) 25 ALR 418
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
Westsub Discount Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310
Westsub v IDAPS (1990) 94 ALR 310
WISBEY DCJ: The plaintiff Edmond Douglas Laws sustained injuries in a work accident on 28 January 1994. At the material time he was fixing roof cladding to a residence at 110 Rochdale Road, Mt Claremont, pursuant to a contract for works between himself and the first defendant, Darsi Pty Ltd, the builder of the residence.
The plaintiff brought this action for damages against Darsi Pty Ltd, and the second defendants Dean and Susan Lee Huntley who were the contract roof carpenters.
In the statement of claim the plaintiff pleaded relevantly to the application now before me that "on or about 28 January 1994 the plaintiff was working on the roof of a house at the premises pursuant to a contract for works between the plaintiff and the first defendant." In its defence the first defendant admitted that allegation. As a consequence it was not necessary at trial to enquire into the precise terms of the contract and/or the obligations of the parties thereunder.
The action was heard by me on 15‑18 February 1999 and judgment was handed down on 23 June 1999. I found, inter alia, that:
"The plaintiff was at all material times working on the premises pursuant to a contract for services entered into between the first defendant and himself. The contract required the plaintiff to supply and fix the guttering and metal cladding (the roof covering) in accordance with plans submitted by the first defendant."
It is also of significance with respect to this application to observe that at the relevant time the plaintiff was in partnership with his wife in the roof fixing business.
On 26 October 1999, the first defendant filed a chamber summons pursuant to O21, r10 (the slip rule), seeking an order that judgment entered on 23 June 1999 be set aside, and in lieu thereof it be ordered that:
(a)Damages be assessed at $44,375.93;
(b)the action be dismissed pursuant to s93D(1) of the Workers' Compensation and Rehabilitation Act 1981;
(c)the plaintiff pay the defendant's costs.
In addition the first defendant sought the costs of the application.
It is now the first defendant's contention that at the time of the accident the subject of the action, the plaintiff was in respect of the contract work (vis a vis the first defendant) a worker as defined in s5 of the Workers' Compensation and Rehabilitation Act 1981( as amended) which relevantly provides that the term "worker" includes:
"any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services."
It is contended by the first defendant, that whilst the plaintiff was engaged in work he was performing at the time of the accident, he was working for the first defendant for the purpose of the first defendant's trade or business under a contract for service, and his remuneration was properly categorised as "being in substance for his personal manual labour or services". On the basis of that assumption the first defendant contends that s93D of the Act precluded an award of damages in favour of the plaintiff unless his future pecuniary loss resulting from the disability was an amount that was at least equal to the prescribed amount. The amount awarded for loss of capacity was substantially less than the prescribed amount. The first defendant argues that in the circumstances, and by reason of s93D, the Court does not have jurisdiction to award damages to the plaintiff. It is submitted that the applicability of the Act to the plaintiff, and particularly the effect of s93D, was overlooked by the parties and by the Court; consequently there was an error arising from an accidental slip or omission; and in the circumstances that error can be corrected by the Court without appeal. In the alternative, the first defendant argues that the Court can address and rectify the error exercising inherent jurisdiction.
It should be noted that the application of the slip rule, and/or the exercise of inherent jurisdiction, is discretionary.
In my view it is not necessary to consider the applicability of the slip rule, and/or the question of whether this Court has inherent power to revoke a judgment, in order to resolve this application. The issue raised by the application was not an issue addressed in the pleadings or articulated in evidence during the trial, and as a result it is not now possible to draw, as has the first defendant, the conclusion that the plaintiff was at the material time a person to whom the provision of the Act applied. If the first defendant had wished to establish that fact, it would have been necessary for it to have pleaded that the plaintiff was a worker within the meaning of the Act, and to prove that he was. It did not attempt to do so, and I am not prepared at this stage to conclude that to be the position. The evidence that was in fact led at the trial as to the contractual arrangements between the plaintiff and the first defendant would suggest that the position was otherwise.
The view I have just expressed effectively disposes of this application, but I would in passing mention that had the position been otherwise I am not of the view that the Court would have power to address under the slip rule the matter raised on this application. In Storey & Keers Pty Ltd & Anor v Johnstone (1987) 9 NSWLR 446 at 452 his Honour McHugh JA stated:
"If the proposed variation of an order relates to a matter which was in issue in the proceedings or to something which was incidental to such a matter, the Court, in my opinion, has power to amend its order if the need for the variation is the result of an accident omission or mistake. Matters such as costs or interest on a judgment, for example, are almost always incidentally involved in proceedings, and the Court has power to deal with them even though they are not specifically raised at the hearing provided, of course, the omission was accidental. No doubt in some cases there will be difficulty in determining whether or not the subject of the proposed variation relates to a matter which was in issue or whether it is to be regarded as a separate and distinct matter which was not in issue… The requirement that the proposed amendment must relate to a matter which was in issue in the proceedings or what was incidental thereto merely serves to emphasise that it is only omissions or mistakes which are accident which can be rectified. It would be contrary to the rationale of the slip rule to allow judgments and orders to be amended to deal with matters which were not in issue in the proceedings. Such matters must be dealt with by way of appeal and in accordance with the principles which govern the raising of new matters on appeal…The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: see F Brew v Whitlock (No 3) (at 506). In general a test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (at 558) if the matter had been drawn to the Court's attention with the correction at once have been made?"
Similarly I am of the view that there would be no room for the exercise of inherent power and note that in Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 his Honour the Chief Justice observed at p407:
"The jurisdiction is to be exercised sparingly lest it encourage carelessness by a party's legal representative and expose to risk the public interest in finality of litigation."
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