Maddock v Crendon Nominees Pty Ltd T/a Crendon Machinery

[2004] WADC 124

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MADDOCK -v- CRENDON NOMINEES PTY LTD T/AS CRENDON MACHINERY [2004] WADC 124

CORAM:   REGISTRAR CHRISTO

HEARD:   12 MAY 2004

DELIVERED          :   22 JUNE 2004

FILE NO/S:   CIV 477 of 2003

BETWEEN:   RAYMOND GRAEME  MADDOCK

Plaintiff

AND

CRENDON NOMINEES PTY LTD T/AS CRENDON MACHINERY
Defendant

Catchwords:

Practice - Application to strike out plaintiff's statement of claim - Order 20 r 19(1) Rules of the Supreme Court of Western Australia - Workers' Compensation and Rehabilitation Act 1981 - Application under O 16 Rules of the Supreme Court of Western Australia

Legislation:

Rules of the Supreme Court of Western Australia

Workers' Compensation and Rehabilitation Act 1981

Result:

Application granted
Judgment entered for the defendant

Representation:

Counsel:

Plaintiff:     Mr P L Haynes

Defendant:     Mr C L Hollett

Solicitors:

Plaintiff:     Paul O'Halloran & Associates

Defendant:     Dibbs Barker Gosling

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

De San Miguel v Ryanex Pty Ltd [2003] WADC 147

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69

Maddock v Crendon Machinery [2003] WADC 235

Newcombe v AME Properties Ltd (1995) 14 WAR

Pilbara Iron Ltd v Bonotto (1994) 11 WAR

Case(s) also cited:

Castro v Murray (1875) LR 10 Exch 213

Civil & Civic Pty Ltd v Pioneer Concrete (NT) Pty Ltd (1991) 103 FLR 196

Dalgety Australia Ltd & Anor v De Vahl Rubin & Ors, unreported; FCt SCt of WA; Library No 5485; 24 August 1984

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Haasy v Town & Country Demolition Pty Ltd [2002] WADC 81

Howden v "Truth" & "Sportsman" Ltd (1937) 58 CLR 416

Jacobs v Booth's Distillery Co (1901) 85 LT 262

Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986

Lawrance v Lord Norreys (1890) 15 App Cas 210

Mokta v Metro Meat International Limited [2004] WADC 78

Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405

Peruvian Guano Co Ltd v Bockwoldt (1883) 23 CH D 25

Re Monger; Ex parte Woodford [1999] WASC 273

Republic of Peru v Peruvian Guano Company (1887) 36 Ch D 489

Theseus Exploration NL v Foyster (1972) 126 CLR 507

Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152

1. REGISTRAR CHRISTO: The defendant has brought an application seeking orders that the plaintiff's statement of claim be struck out in accordance with O 20, r 19(1) of the Rules of the Supreme Court, on the grounds that:

   (a)it discloses no reasonable cause of action; or

   (b)it is vexatious; or

   (c)it is otherwise an abuse of process of the Court.

2. Alternatively, the defendant seeks orders that summary judgment be entered for the defendant, pursuant to O 16, r 1(1)(a) of the Rules of the Supreme Court, on the basis that the action should be disposed of summarily.

History

1. The plaintiff issued a writ on 5 March 2003 seeking damages against the defendant for injuries suffered in an accident on 16 April 1997, while employed by the defendant. Prior to filing an appearance or defence, the defendant brought a motion under O 12, r 7 of the Rules of the Supreme Court to strike out the plaintiff's writ, or for summary judgment in favour of the defendant.

2. On 3 November 2003, Deputy Registrar Harman declined to make the orders sought. He found that the defendant's application did not fall within the scope of O 12, r 7 and that the defendant could not draw upon O 20, r 19 as a basis for the application. Nor, in the circumstances of this matter, could the defendant utilise the summary judgment procedure under O 16, r 1, which would only be available if an appearance had been filed by the defendant.

3. The defendant appealed against the order of Deputy Registrar Harman.  The appeal was heard by his Honour Groves DCJ on 14 January 2004 and was dismissed.  His Honour adopted the reasons of Deputy Registrar Harman and expressed the view that the application was prematurely made.

4. On 19 January 2004, the defendant filed a memorandum of appearance and on 26 March 2004, filed a chamber summons applying for orders that:

   "1.The plaintiff's statement of claim be struck out in accordance with the provisions of O 20, r 19(1) of the Rules of the Supreme Court and that judgment be entered for the defendant on the grounds that:

   (a)it discloses no reasonable cause of action; or

   (b)it is vexatious; or

   (c)it is otherwise an abuse of the process of the Court.

   2.In the alternative, that summary judgment be entered for the defendant pursuant to O 16, r 1(1)(a) of the Rules of the Supreme Court on the basis that the action should be disposed of summarily.

   3.…"

Issues

1. The affidavit of Craig Leonard Hollett in support of the application, among other things, set out the following:

   ·Pursuant to s 93D(5) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") the plaintiff lodged a Form 22 – Referral of Degree of Disability with the Director of the Conciliation and Review Directorate on 7 December 1999. [The level of disability claimed by the plaintiff was not less than 16 per cent.]

   ·The defendant objected to the degree of disability claimed. Therefore, a dispute had arisen for the purposes of the Act and the matter was referred to a review officer for determination under s 93D(10) of the Act.

   ·The application was heard and dismissed by a review officer on 7 December 1999.  An appeal to the Compensation Magistrate resulted in the review officer's decision being quashed and the matter being referred back to review.  The next review officer to deal with the matter decided that he had no jurisdiction to determine the referred question and dismissed the application.

   ·The plaintiff then filed a writ of summons in the District Court.

2. The main points raised in the defendant's written submissions filed on 5 March 2004 and at the hearing of the chamber summons were:

   ·To date, there is no determination of degree of disability for the plaintiff. The Act makes such a determination a prerequisite to an award of damages (s 93E(3)).

   ·There is no evidence before the Court which would suggest that the plaintiff is capable of founding such a determination.

   ·The effect of this is that the plaintiff is contending that he has a right to an award of damages, from which, in fact, he is precluded.

   ·Given that the plaintiff's disability resulted from an accident on 16 April 1997 and that the "termination day" under s 93E(5) of the Act has passed, there is no way for the plaintiff to file another degree of disability application seeking a finding of not less than 16 per cent. He is now out of time to elect.

   ·To recover an award of common law damages, a worker must obtain an assessment of disability of between 16‑29 per cent or a disability of 30 per cent or more.  There is no evidence before the Court to found a determination by Work Cover of a degree of disability of 30 per cent or more.

3. The defendant relies upon the above matters to support its contention that the statement of claim discloses no reasonable cause of action, is vexatious, or is otherwise an abuse of process of the Court and that it should be struck out.

4. Alternatively, the defendant argues that O 16, r 1(1) should be applied to grant it summary judgment. Here, the defendant relies on the argument that under s 93E(3) of the Act, the Court would be unable to award damages to the plaintiff. The situation in this case appears to be similar to that in the situation dealt with by Registrar Kingsley in the matter of De San Miguel v Ryanex Pty Ltd [2003] WADC 147.

5. The plaintiff agrees that damages can only be awarded if a relevant degree of disability has been agreed or determined under the Act. However, the plaintiff argues that this has to be in place at the determination of his action. In other words, the plaintiff should be able to proceed with this litigation, that pleadings should be filed, a pre‑trial conference held and so on, but would hope to have a determination under the Act, by the time of trial and judgment. In fact, this was the view taken by Deputy Registrar Harman when deciding the defendant's previous application reported at Maddock v Crendon Machinery [2003] WADC 235.

6. In matter number WC 93D No 70 of 1999, this particular plaintiff has been granted leave under s 93D(4) of the Act (as it was before October 1999) pursuant to the decision of Dossett v TKJ Nominees Pty Ltd [2003] HCA 69.

7. That leave was granted by Deputy Registrar Hewitt.  However, Deputy Registrar Hewitt did not grant retrospective leave to commence an action under s 93D as it was before October 1999.  His decision is presently the subject of an appeal on the issue of whether leave can be granted retrospectively.  Ultimately, if the plaintiff is successful in his appeal, it will not be necessary to obtain a determination of a relevant disability of 30 per cent or more.  He will be able to proceed with this present action without such a determination.

8. At the hearing of this particular application, I was advised that the plaintiff's psychiatric condition has worsened considerably.  The plaintiff's view is that there is sufficient disability on psychiatric and sexual function grounds, together with the back dysfunction, on which a 30 per cent determination can be based.

9. In reply, the defendant quoted authorities on the issue of whether it was possible to grant leave retrospectively.  (Newcombe v AME Properties Ltd (1995) 14 WAR at 259 and Pilbara Iron Ltd v Bonotto (1994) 11 WAR at 348). Based on these authorities, the defendant argued that in a situation of this kind, leave must be granted prospectively not retrospectively. According to the defendant, the plaintiff would need to overturn those authorities and therefore, these proceedings cannot be saved.

Conclusion

1. Having considered the various lines of approach in this matter it is my view that:

   ·Although the plaintiff is barred from seeking a Work Cover determination of between 16‑29 per cent, he is not barred by s 93E(3)(b) from seeking a determination of 30 per cent or more, as there is no time limit expressed in the Act, in respect of that section.

   ·There is nothing in the words of s 93E to suggest that the plaintiff must obtain that determination prior to issuing a writ claiming damages.  I accept the proposition of the plaintiff that the section will be complied with if a determination is obtained prior to trial and judgment.

   ·However, there is insufficient evidence before me to suggest that the plaintiff may succeed in obtaining a determination of 30 per cent or more.

   ·I recalled this matter on 3 June 2004 to allow the plaintiff the opportunity to present further evidence on this issue.  I was advised by the plaintiff's counsel that although there is insufficient evidence on hand at the moment to support a finding of a disability of 30 per cent or more, it could be obtained.  However, the necessary medical reports were likely to cost the plaintiff more than $2,500.  Due to this cost and the plaintiff's current psychological state, the plaintiff's counsel preferred to rely on the evidence currently before the Court.

   ·Therefore, similarly to the situation in De San Miguel v Ryanex Pty Ltd, there is no evidence put before me which may be capable of founding a determination that the plaintiff has a degree of disability of more than 30 per cent.  On this basis, continuation of the proceedings would be an abuse of process.

   ·If a determination of more than 30 per cent is not obtained, the plaintiff will need to rely on a successful appeal in matter number WC 93D No 70 of 1999.  Otherwise, the writ issued in these particular proceedings would be a nullity.  Given the authorities, such as Newcombe's case and Bonotto's case, mentioned above, I think that the plaintiff has little chance of succeeding in the appeal.  On this basis as well, continuation of the proceedings would be an abuse of process.

2. Accordingly, I would strike out the plaintiff's statement of claim and enter judgment for the defendant against the plaintiff.