| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MAITLAND -v- PILBARA MANGANESE PTY LTD [2005] WADC 84 CORAM : MULLER DCJ HEARD : 6 APRIL 2005 DELIVERED : 5 MAY 2005 FILE NO/S : CIV 2760 of 2003 BETWEEN : RICHARD IAN MAITLAND Plaintiff
AND
PILBARA MANGANESE PTY LTD
Defendant
Catchwords: Application to strike out or stay proceedings - Section 175 Workers' Compensation and Rehabilitation Act 1981 - Claim for damages - Failure of worker to obtain a degree of disability determination - Whether defendant was the deemed employer under the Act
Legislation: Workers Compensation and Rehabilitation Act 1981
Result: Application dismissed
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Representation:
Counsel:
Plaintiff : Mr G Droppert
Defendant : Mr K F Weston
Solicitors:
Plaintiff : Ilberys
Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Jones v Wesfarmers Ltd [2003] WASCA 225
Robe River Mining Co Pty Ltd & Anor v Morseu [2004] WADC 142
Case(s) also cited:
Custom Credit Corporation Ltd v Miller [1964] QWN 2
Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Wentworth v A-G (NSW) (1984) 154 CLR 518
Bandwill Pty Ltd v Spencer Laitt (2000) 23 WAR 390
Hastie v Iluka Midwest Ltd (2003) 32 SR (WA) 190
Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152
Price v Resolute Resources Ltd [2002] WADC 235
De San Miguel v Ryanex Pty Ltd [2003] WADC 263
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1 MULLER DCJ: This is an application by the defendant for an order dismissing the plaintiff's claim or alternatively staying the action pending a degree of disability determination being obtained by the defendant.
2 The statement of claim filed by the plaintiff claims damages against the defendant for personal injuries allegedly suffered by the plaintiff as a consequence of the defendant's negligence at the defendant's mine site in the Pilbara area on 10 July 2002. At that time the plaintiff was employed by Extraman Trading Trust, a provider of personnel and human resources services, and was working for the defendant as a mill operator pursuant to an employment contract. 3 According to an affidavit sworn by Neil Greygoose on 15 December 2004 the defendant owned and operated the Woodie Woodie Manganese Mine located 400 kilometres south east of Port Hedland. The defendant is said to be a wholly owned subsidiary of Consolidated Minerals Ltd. In par 8 of his affidavit the deponent asserts that pursuant to a contract between Consolidated Minerals Ltd and Extraman entered into on or about 1 July 2002 Consolidated Minerals Pty Ltd engaged Extraman to provide personnel to the defendant to work at the Woodie Woodie Manganese Mine. A copy of the contract between Consolidated Minerals Ltd and the Extraman Trading Trust is annexed to the affidavit. Pursuant to that contract Extraman undertook to supply contract personnel and other human resources services for Consolidated Minerals operations at the Woodie Woodie mine site and other locations. The contract defines the respective obligations of both parties and sets out the schedule of rates payable by Extraman to employees and those payable by Consolidated Minerals to Extraman. With respect to occupational health and safety the contract expressly vests responsibility for the safety of workers in Consolidated Minerals. Consolidated Minerals also indemnified Extraman for any loss arising from an injury to an employee whilst on hire to Consolidated Minerals. 4 In par 11 of his affidavit Neil Greygoose asserted that the plaintiff's services were first provided to the defendant by Extraman on or about 12 May 2000. He began work as a mill operator which the defendant claims was directly part of its mining business and necessary for that business to be conducted. On the day of the alleged accident the plaintiff was working on a conveyor belt on the mine site when the belt became blocked and, in the process of clearing it, his arm was caught in the machinery and he sustained injuries to his right upper limb and right shoulder.
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5 According to an affidavit of Kristy Suzanne Weston sworn on 23 November 2004 the plaintiff made a workers' compensation claim for his injuries arising out of this accident and received weekly compensation payments commencing on 31 July 2002. On 24 December 2002 the plaintiff sought a determination from the Director of Conciliation and Review that his degree of disability was not less than 16 per cent for the purposes of Div 2 of Pt IV of the Workers' Compensation and Rehabilitation Act 1981. In a letter dated 17 February 2003 the Director of Conciliation and Review concluded that the medical evidence submitted by the plaintiff in support of his application for a determination did not warrant a finding that his degree of disability was not less than 16 per cent. In that same decision the Director also concluded that no further consideration of the plaintiff's application for a determination was possible because the termination day had passed. Based on this information the defendant has asserted that there has been no determination or agreement made in respect of the plaintiff's degree of disability for the purposes of Pt IV of Div 2 of the Act.
6 The defendant has argued that Pilbara Manganese Pty Ltd is the plaintiff's deemed employer for the purposes of the Workers' Compensation and Rehabilitation Act 1981. In support of this argument reliance is placed on the extended definition of principal in s 175(6) of the Act: Jones v Wesfarmers Ltd [2003] WASCA 225. 7 Section 175(1) of the Act states: "Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor 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." 8 Where certain persons are deemed to be employers for the purposes of the Act the constraints on awards of common law damages under Pt IV Div 2 of the Act come into play. The defendant has argued that the plaintiff's claim is subject to these constraints or restrictions; Hewitt v Benale Pty Ltd (2002) 27 WAR 91. If this argument is correct a determination that Pilbara Manganese Pty Ltd is the plaintiff's deemed
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employer is a critical factor because, in the event of that finding being made, the plaintiff's apparent failure to obtain a determination of his degree of disability would constitute a bar to any common law claim for damages. The effect of the relevant provisions of the Act was explained in a decision of this Court in Robe River Mining Co Pty Ltd & Anor v Morseu[2004] WADC 142 where her Honour Deane J said:
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under a contract which it had with Robe River Mining Co Pty Ltd. The question then becomes whether, in this case, the work on which the respondent was employed at the time of the occurrence of the disability is directly a part or process in the trade or business of the principal." 9 There can be no question but that the work which the plaintiff was engaged in at the time of the accident was directly a part or process in the trade or business of the defendant. But that is not an end to the matter. The critical question in this case is whether Pilbara Manganese Pty Ltd is the deemed employer for the purposes of the Act. The plaintiff has argued that it is not. Pilbara Manganese Pty Ltd was not a party to the contract under which the labour of the plaintiff was made available to Consolidated Minerals Ltd at the Woodie Woodie mine site. The corporate entity which contracted with Extraman Trading Trust for the supply of the plaintiff's services as a worker on the mine site was Consolidated Minerals Ltd acting on its own. There is no mention of the defendant in the contract. There is nothing in the contract to connect the defendant with Consolidated Minerals Ltd. The only material before the Court suggesting any connection is the affidavit of Neil Greygoose where it is asserted in par 9: "Consolidated Minerals Ltd entered into the labour hire contract on behalf of the defendant to enable Extraman to provide labour to the defendant." The plaintiff submits this paragraph is tantamount to an assertion that Consolidated Minerals Ltd was acting as an agent of the defendant when it entered into the contract and that as a matter of law the defendant must be deemed to be a principal to that contract. This is an issue which, the plaintiff submits, can only be resolved by evidence as to the labour hire contract itself and any contract that might have existed between the defendant and Consolidated Minerals Ltd. 10 I agree with this view. Section 175(1) of the Act refers specifically to the principal being a person who contracts with another person (the contractor) for the execution of any work by or under the contractor. The contract was between Consolidated Minerals Ltd and Extraman Trading Trust. There is nothing in the contract to suggest Consolidated Minerals was contracting as agent for the defendant. The only material before the Court to suggest any link between Consolidated Minerals Ltd and the defendant is to be found in par 6 of the affidavit of Alan James Quadrio and par 6 and par 9 of the affidavit of Neil Greygoose. But the assertions
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in these affidavits fall far short of establishing any relationship of principal and agent between Consolidated Mining and the defendant. 11 The defendant sought to address this difficulty by submitting that there was a separate contract between the defendant and Extraman. In support of this argument emphasis was placed on the fact that the plaintiff, while always an employee of Extraman, had actually begun work for the defendant on 12 May 2000, some two years before the accident which caused his injuries. It was argued that the contract between Consolidated Mining and Extraman was a general agreement for the supply of labour by Extraman to the subsidiary companies controlled by Consolidated Minerals. The written contract, it was argued, was not for the supply of any individual worker. It simply set out the general terms and conditions applicable to all hired labour. It did not preclude separate contracts between any of the subsidiaries of Consolidated Mining and Extraman for the supply of a particular worker provided he was engaged on the same terms and conditions contained in the written contract. Counsel for the defendant submitted there was evidence from which it could be inferred that the defendant had employed the plaintiff. The factors relied upon were as follows: first, that Extraman continued to invoice the defendant directly for the supply of the plaintiff's labour; second, that the defendant paid Extraman directly for the plaintiff's labour; and thirdly that the defendant had supervision and control of the plaintiff at the work site. These factors, taken in conjunction with the supply of the plaintiff's labour to the defendant before the written agreement between Consolidated Mining and Extraman, were said to point to the existence of a separate contract in which Pilbara Manganese Pty Ltd was the principal and Extraman the contractor. 12 I am unable to accept this submission. Whatever the position may have been in the past the written agreement between Consolidated Mining and Extraman was, in my view, the only agreement governing the supply of labour to the Woodie Woodie mine site and other mining operations conducted by Consolidated Minerals Ltd. Any other interpretation would conflict with the agreement itself. Part B of the agreement defines the scope of supply and expressly states that Extraman shall provide contract personnel for Consolidated Minerals operations. The contract stipulates that Extraman is to be the sole supplier of certain classifications of personnel including mill operators. As the sole supplier Extraman was responsible for providing labour to Consolidated Minerals Ltd. Part A of the formal agreement expressly stipulates that the labour is to be supplied by Extraman to Consolidated Minerals Ltd as "owner and manage of the Woodie Woodie Manganese" site. The only reasonable interpretation is
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that the contract contemplated Extraman being the exclusive supplier of mine labour to Consolidated Minerals at its mine site in Woodie Woodie. Any supply of labour to the same mine site at Woodie Woodie outside the terms of the written contract would, in my view, be entirely inconsistent with the formal agreement and the rights and obligations of Extraman under that agreement. I am unable to accept the defendant's submission that there was a second implied contract between the defendant and Extraman. 13 In the alternative the defendant submitted that an agency agreement could be inferred from par 9 of the affidavit of Neil Greygoose taken in conjunction with the evidence of the payment of invoices by Pilbara Manganese Pty Ltd and its control and supervision of the plaintiff. I do not believe these factors go far enough to enable me to draw such an inference. 14 My conclusion is that there is insufficient evidence to conclude that Pilbara Manganese Pty Ltd is a principal for the purposes of s 175(1) of the Workers' Compensation and Rehabilitation Act 1981. There may be evidence that Pilbara Manganese Pty Ltd is a wholly owned subsidiary of Consolidated Mining and that Consolidated Mining was acting as an agent for Pilbara Manganese Pty Ltd when it entered into the written agreement with Extraman. Those issues, however, will necessarily have to be resolved at the trial if one takes place. I am not prepared to strike out or stay the plaintiff's claim on the basis of the material presently before the Court. 15 I would refuse the application to strike out or stay the plaintiff's claim.
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