| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LUPTON -v- ELECTRICITY CORPORATION [2004] WADC 173 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 22 JULY 2004 DELIVERED : 18 AUGUST 2004 FILE NO/S : CIV 164 of 2003 BETWEEN : GRAEME FRANK LUPTON Plaintiff
AND
ELECTRICITY CORPORATION
Defendant
KYE PTY LTD
First Third Party
GEOGRAPHE UNDERGROUND SERVICES PTY LTD
Second Third Party
QBE INSURANCE (AUSTRALIA) LIMITED
Third Third Party
(Page 2)
Catchwords:
Practice - Western Australia - Practice under the rules of the Supreme Court of Western Australia - Application to strike out a pleading and for judgment in third party proceedings
Legislation: Workers Compensation and Rehabilitation Act 1981
Result: Application dismissed Representation:
Counsel:
Plaintiff : Not applicable
Defendant : Mr G Hancy
First Third Party : Mr S Popperwell
Second Third Party : Mr T Lampropoulos
Third Third Party : Mr S Popperwell
Solicitors:
Plaintiff : No appearance
Defendant : Phillips Fox
First Third Party : Pynt & Partners
Second Third Party : Jackson McDonald
Third Third Party : Pynt & Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Biggin & Company Ltd v Permanite [1951] 2 KB 314
Cliffs Robe River Iron Associates v Dravo [1988] WAR 322
Commercial Developments Pty Ltd v Mercantile Mutual Insurance Ltd (1991) 5 WAR 208
(Page 3)
Edwards v Insurance Office of Australia Ltd (1933) 34 SR (NSW) 88
G R E Insurance Ltd V QBE Insurance Ltd [1985] VR 83
Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603
(Page 4)
1 DEPUTY REGISTRAR HARMAN: Under the defendant's third party notice against the second third party it claimed an indemnity on the basis of breach by the third party of the duty of care owed by the third party to the plaintiff. The remedy now sought by the defendant is by way of indemnity to the extent of the judgment obtained by the plaintiff.
2 The second third party pleads that in circumstances where the plaintiff required leave to commence the action he did so without leave. It contends that the plaintiff's claim was not maintainable, that the defendant was not at risk in the action and the judgement in favour of the plaintiff is a nullity. By the application the second third party seeks to have the defendant's claim dismissed. The onus is on the applicant. 3 The case for the plaintiff requiring leave to commence the action depends on a finding that in accordance with s 175 of the Workers' Compensation and Rehabilitation Act 1981 the defendant would be deemed to have been an employer of the plaintiff. Section 175 is as follows: - "Where a person (in the section referred to as the principal) contracts with another person (in the section referred to as the contractor) for the execution of any work by or under the contract and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act." 4 To date there has been no determination made in the action under that provision. 5 On the pleadings the applicant admits the defendant's allegation that the plaintiff was employed by the first third party. In order to succeed on the terms of the application it is for the applicant to establish that at the material time the plaintiff was undertaking work under a contract between the defendant and the first third party. At par 13(a) of its defence the applicant alleges that the defendant was the principal of the first third party and that for the purposes of the Act, by s 175 was constituted as an employer of the plaintiff. It does not found that allegation. It is denied. The same relationship is expressed at par 14 of the defendant's claim other than by reference to the provision. It is not admitted by the applicant.
(Page 5)
6 The applicant pleads at par 13(b) that at the relevant time the plaintiff was performing work that was part of the trade or business of the defendant. That too is denied. The defendant pleads that the work undertaken by the plaintiff at the defendant's premises was on his employer's instructions. It has nothing to say about the relationship between the work carried out by the plaintiff and the contractual relationship between the defendant and first third party or the work being part of the defendant's trade or business.
7 In the claim made by the defendant against the first third party the defendant pleads a case that suggests that at the time that the plaintiff was injured he was undertaking work associated with the relationship between his employer and the defendant relating to the defendant's trade or business. I appreciate that in the context of the claim against the applicant what is pleaded or implicit in a case against any other party is no more than an indication of the nature of the case and that the defendant would properly be taken to have some evidence to support the pleading. The pleading does not amount to an admission of the application of the provision or the satisfaction of its terms. 8 Otherwise the applicant relies on the affidavit of Erin Dyer. That evidence canvasses evidence of the plaintiff as to his employer's relationship with the defendant and of his employer of its relationship with the defendant. That evidence was given in an application for leave to commence proceedings made by the plaintiff. I do not have it. As to the plaintiff's evidence, although it may have been satisfactory for the purposes for which it was intended, for the purpose for which the applicant contends it could not be safely relied upon. No doubt there would be cases where a third party could provide evidence of the contractual relationships between other parties. This is not such a case. As to the evidence of the employer, the defendant contends that the hearsay evidence given is itself of hearsay evidence. Not having the affidavit of the employer to which Ms Dyer refers I am not in a position to make a judgment on that point. I do note that the evidence to which the deponent refers is of "Lucinda Marie Walsh solicitors (the plaintiff's employer)". There is a reasonable prospect that the defendant's assessment is correct. 9 In the circumstances there is insufficient on the pleadings and the evidence to justify the result sought by the applicant.
|