Lovric v WorkCover Authority of New South Wales (No 2)

[2008] NSWSC 376

CITATION:	Lovric v WorkCover Authority of New South Wales (No 2) [2008] NSWSC 376
HEARING DATE(S):	22 April 2008
JUDGMENT DATE :	29 April 2008
JUDGMENT OF:	Harrison J
DECISION:	The plaintiffs' case against the second defendant in each proceedings dismissed with costs
CATCHWORDS:	CIVIL PROCEDURE - strike out applications pursuant to UCPR rules 13.4 and 14.28 – facts said to be incapable of supporting pleaded allegations – proceedings against second defendant dismissed
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Lovric v WorkCover Authority of New South Wales [2007] NSWSC 898
PARTIES:	Dusan Lovric and Tedora Lovric (Plaintiffs) WorkCover Authority of New South Wales (First defendant) Foti's International Fireworks (Displays) Pty Ltd (Second defendant) International Fireworks Pty Ltd (Sixth defendant in proceedings no 20216 of 2006)
FILE NUMBER(S):	SC 20215 of 2006; 20216 of 2006
COUNSEL:	D R Conti SC with R L Ingram (Plaintiffs) G J Sarginson (First defendant) R A Cavanagh (Second defendant) A R Davis (Sixth defenant in proceedings no 20216 of 2006)
SOLICITORS:	Slater and Gordon (Plaintiffs) I V Knight, Crown Solicitor (First defendant) Wotton & Kearney (Second defendant) Curwoods Laywers (Sixth defendant in proceedings no 20216 of 2006)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

29 April 2008

20215 of 2006 Dusan Lovric v WorkCover Authority of New South Wales & Ors
20216 of 2006 Todora Lovric v WorkCover Authority of New South Wales & Ors

JUDGMENT

1 Paragraph 35 of Mr Lovric’s amended statement of claim is in the following terms:

"The second defendant was at all material times:


(a) an occupier of the premises;

(b) an entrepreneur of the business;

(c) . . .

(d) . . . in control and responsible for the management and control of the premises;

(e) responsible for the operations being performed at the premises;

(f) responsible for the plant, equipment and substances used for the purposes of the business;

(g) . . .

(h) "a controller of the premises" within the meaning of the Occupational Health and Safety Act 2000 and its Regulations;

(i) "an occupier" within the meaning of the Occupational Health and Safety Regulation 2001”.

2 There is an equivalent paragraph in Mrs Lovric's amended statement of claim.

3 By its notices of motion in each case the second defendant seeks to have the claims against it dismissed pursuant to Rule 13.4 of the UCPR or to have the amended statements of claim struck out pursuant to Rule 14.28 of the UCPR upon the grounds that the amended statements of claim disclose no reasonable causes of action or are otherwise an abuse of the process of the court. The background to this litigation is set out by me in Lovric v WorkCover Authority of New South Wales [2007] NSWSC 898, which was concerned with a similar application by the first defendant. It is for that reason unnecessary for present purposes to repeat what was said there.

4 All parties to the motions provided written submissions. The second defendant put its case on the single basis that all of the evidence that is or might be relevant to the issues pleaded in paragraph 35 is contained in affidavits relied upon by the plaintiffs and the second defendant and that upon a consideration of all of that material there is no basis to support any of the matters pleaded in that paragraph. The second defendant emphasises that in bringing the present applications it is not seeking to ventilate issues such as breach of duty of care, causation, loss, expert analysis or other factual issues. The applications are brought on only the one basis so that all evidence relating to other issues is irrelevant.

5 The second defendant relied upon the affidavits of Vincenzo Antonio Foti sworn 18 January 2008 and Charles Baragwanath Thornley sworn 19 December 2007. The burden of the material contained in those affidavits is said to be that the financial records of the second defendant establish that it was not trading in the year of the accident or at the time of the accident and was not conducting the business that the plaintiff alleges it was conducting. Moreover, the evidence is said to establish that the second defendant was not a controller or occupier as alleged.

6 The second defendant concedes that the issue for determination is whether or not the plaintiffs have any arguable case on the evidence before the court on the applications. The second defendant says that the evidence upon which the plaintiffs rely is irrelevant as it deals with issues such as the cause of the accident, decisions relating to earlier proceedings involving different incidents and statements relating to an earlier incident. The second defendant says that whatever that evidence might say about whether or not it was a proper defendant in the earlier proceedings, it does not refute the evidence upon which the second defendant presently relies.

7 The second defendant says that it is not a proper defendant and that the plaintiffs have no cause of action against it. Unless the court accepts that there is an arguable case contrary to the second defendant’s evidence, the orders sought in the applications should be granted.

8 In response to these submissions, the plaintiffs dispute the contention that the second defendant was not trading and was dormant. For the year ended 30 June 2000, the profit and loss statement discloses an income of more than $1.313 M. Documents forming part of the second defendant’s 2003 return show an income of $3,639.52 for the year ending 30 June 2002. For the year ended 30 June 2003 the profit and loss statement discloses an income of $69.79. The plaintiffs submit that "during the relevant financial year, [the second defendant] derived an income from its trading activities". The "relevant financial year" is the year ending 30 June 2003.

9 Alternatively, the plaintiffs submit that if the second defendant was not trading at the time of Mr Lovric's accident, that in itself would not preclude it from being found liable to the plaintiffs. In aid of this submission the plaintiffs contend that there are numerous examples "in which corporations conduct themselves for non-trading purposes". No instances of this are proffered in support of the submission. Such corporations are said to have the same legal capacity and power of a corporation engaged in revenue producing or profit making activities. In the present case, the second defendant's legal capacity and power is said not to protect it from a tortious or statutory liability. The second defendant remained a registered corporation. The plaintiffs did not seek to relate these theoretical matters to the pleaded case.

10 The plaintiffs submitted that the second defendant was not dormant. No evidence that appeared to me to support that submission was identified.

11 The plaintiffs relied upon the affidavit of Kathryn Williams sworn 3 April 2008. That affidavit exhibits a series of 19 separate documents totalling 338 pages. It is by reference to this material that the plaintiffs seek to support the proposition that paragraph 35 of the amended statements of claim is maintainable. However, in my opinion, that attempt is ill fated. This is for the following reasons.

12 Despite the dual basis upon which the present applications have been brought, there is no serious challenge to the form of the amended statements of claim as pleaded. The burden of the second defendant's argument is to concede that the facts pleaded if established are capable of amounting to valid causes of action. However, there is no evidence now to support the pleaded cases and significantly for present purposes no likelihood that any such evidence will ever materialise. The plaintiffs seek by analogy to draw inferences from documents dealing with other times and other circumstances so as to suggest that a state of affairs that may once have existed continued to subsist at the time of Mr Lovric's accident. This attempt was entirely forensic and semantic. No part of any evidence demonstrates that the second defendant was any of the things that the plaintiffs allege that it was on 10 June 2003, whatever may have been the position at an earlier time. Statements made by Mr Foti in the context of other proceedings were not in my opinion apt to establish the matters concerning the second defendant that the plaintiffs hope to establish.

13 The defect in the plaintiffs' cases is patent. In my opinion they are so clearly untenable that they cannot possibly succeed. In this respect I observe that it was not submitted on behalf of the plaintiffs that there was, or might ultimately be, any other evidence relevant to proof by the plaintiffs of their pleaded cases against the second defendant. In other words, the court is as able now to determine the strength of the plaintiffs' cases as it ever will be.

Conclusion

14 In these circumstances the plaintiffs' case against the second defendant in each matter should be dismissed with costs.

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