McGiveron v BP Refinery (Kwinana) Pty Ltd

[2003] WADC 267

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   McGIVERON -v- BP REFINERY (KWINANA) PTY LTD [2003] WADC 267

CORAM:   REGISTRAR KINGSLEY

HEARD:   6 NOVEMBER 2003

DELIVERED          :   Delivered Extemporaneously on 6 NOVEMBER 2003 typed from tape and edited by Registrar

FILE NO/S:   CIV 2110 of 2000

BETWEEN:   MICHAEL McGIVERON

Plaintiff

AND

BP REFINERY (KWINANA) PTY LTD
Defendant

MITCHELL CORP PTY LTD
Third Party

Catchwords:

Practice - Application to amend defence to plead, s 175 Workers' Compensation and Rehabilitation Act 1981 - Application pursuant to O 16 Rules of the Supreme Court1971 - Turns on its own facts

Legislation:

Nil

Result:

Application to amend refused 
Application for judgment refused

Representation:

Counsel:

Plaintiff:     Mr K S Pratt

Defendant:     Mr P V Lansell

Third Party  :     No appearance

Solicitors:

Plaintiff:     Trewin Norman & Co

Defendant:     Jackson McDonald

Third Party  :     Blake Dawson Waldron

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

Baxter v Obacelo Pty Ltd [2001] HCA 66

Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62

DHN Food Distributors Ltd and Others v London Borough of Tower Hamlets [1976] 3All ER 462

Hewitt v Benale [2002] WASCA 163

Smith, Stone and Knight Ltd v Birmingham Corporation [1939] 4 All ER 116

Case(s) also cited:

Atkinson v Fitzwalter [1987] 1 All ER 483

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32

Jones v SNF (Australia) Pty Ltd & Anor [2002] WADC 207

Salomon v Salomon & Co [1897] AC 22

Sinclair v James [1894] 3 CH 554

1. REGISTRAR KINGSLEY:  In this matter McGiveron was a tanker driver employed by Mitchell Corp Pty Ltd.  During the course of his employment McGiveron was required to attend BP Refinery (Kwinana) oil refinery to fill the tanker he was driving with oil.  I shall refer to the defendant as "BP Kwinana." 

2. In January 1999, whilst attending the premises of BP Kwinana, in order to fill the tanker with oil, his right foot slipped and he fell, injuring himself.  Mr McGiveron brings this claim against BP Kwinana alleging negligence and a breach of s 5 of the Occupiers Liability Act. 

3. The defendant has brought an application to amend its defence and that judgment be entered for the defendant against the plaintiff.  Dealing with the amendment in the defence, the contentious amendment is par 8, which seeks to plead that BP Kwinana was the principal of the plaintiff's employer, Mitchell Corp Pty Ltd.

4. The basis of this relationship is that in April 1998 Mitchell Corp entered into a written agreement with BP Australia Ltd.  The defendant pleads the express terms of the agreement, pleads the shareholding, that BP Australia has in BP Kwinana, which is a substantial shareholding, and that the work the plaintiff was performing is part of the process and the trade of business of the defendant.

5. The defendant goes on to plead that the plaintiff's degree of disability is not 30 per cent or 16 per cent and says that the plaintiff is not entitled to damages from the defendant. 

6. The avowed reason for the amendments arises from the decisions in Hewitt v Benale [2002] WASCA 163 and the defendant argued that the proposed amendments were necessary to enable the defendant to raise the issue whether the defendant is a deemed employer s 175 (Workers' Compensation and Rehabilitation Act 1981).

7. The evidence before the Court is that both BP Kwinana and BP Australia were controlled by the same foreign holding company.  There were common officers between both companies and that, as the defendant's counsel argued, the agreement between Mitchell Corp and BP Australia can be treated as an agreement between Mitchell Corp and BP Kwinana.

8. In support of this application, the defendant's counsel cited cases, including Smith, Stone and Knight Ltd v Birmingham Corporation [1939] 4 All ER 116 and DHN Food Distributors Ltd and Others v London Borough of Tower Hamlets [1976] 3All ER 462. Both cases relate to the compulsory purchase by the defendant of land. The plaintiff did not own the land but conducted business on the land.

9. In both cases, the Court effectively lifted the corporate veil to determine which company had such an interest in the land upon which the business was being conducted that it was entitled to receive compensation upon compulsory purchase.  The cases cited have either been distinguished or specifically not followed in Australia.

10. Section 175 of the (Workers' Compensation and Rehabilitation Act) provides that where a principal contracts with a contractor for the execution of work by the contractor and in the execution of that work a worker employed by the contractor is injured, then both the principal and the contractor are deemed to be employers.  In this case, there is no agreement between Mitchell Corp and BP Kwinana. 

11. What BP Kwinana seeks to do is assume the benefit of a contract between BP Australia and Mitchell Corp without any of the burden.  An agreement has not been entered into between Mitchell Corp and BP Kwinana.  The agreement entered into between Mitchell Corp and BP Australia is not expressed for the benefit of BP Kwinana.

12. The agreement does not provide for Mitchell Corp to be remunerated for services by BP Kwinana.  The agreement does not provide for Mitchell Corp to be directed to carry out road transport services by BP Kwinana.  The agreement does not provide for Mitchell Corp to adhere to health and safety requirements as set out by BP Kwinana and the agreement does not provide for Mitchell Corp to adhere to the vehicle standards as established by BP Kwinana.

13. Whilst a court should be loath not to stifle the development of law, the pleading put forward by the defendant is unsupported by any authority and the application to amend is refused. 

14. The plaintiff has entered into a lump sum redemption agreement with Mitchell Corp releasing his employer from all claims and demands the plaintiff had.

15. The application pursuant to O 16, is based on the redemption agreement. I must have regard to the principles in relation to O 16 applications, particularly those enunciated in Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62 that the issue must be wholly unarguable.

16. The defendant's counsel's argument is that the redemption agreement contains no reservation of rights.  It is, for all intents and purposes, a judgment.  I was referred to the High Court authority of Baxter v Obacelo Pty Ltd [2001] HCA 66 where Gleeson CJ and Callinan J specifically commented that if, either expressly or by intention a settlement agreement manifested a common intention of the parties, that the settlement sum was to be paid and received in full satisfaction, then a further claim would fail. At par 49 of Baxter v Obacelo the deed of release, the terms of settlement and the conduct of the parties to the settlement clearly showed that the respondents to the appeal would pursue their claim against the appellant.

17. I am not of the opinion that it is so unarguable in this case that the redemption agreement entered into by the plaintiff evidenced that necessary intention that the plaintiff in this case was not to proceed with a claim.  I refer to the conduct of the plaintiff in that the proceedings were issued in August 2000, whereas the redemption agreement was entered into in June 2001.  For those reasons, the application for judgment is also refused.