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Mills v Dunpec Pty Ltd

Mills v Dunpec Pty Ltd

Case [2024] NSWSC 340 2 April 2024

Standing

Summary Judgment

Issue Estoppel

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Mills v Dunpec Pty Ltd [2024] NSWSC 340
Hearing dates: 2 April 2024
Date of orders: 2 April 2024
Decision date: 02 April 2024
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Order the defendant’s notice of motion filed 14 February 2024 be dismissed.
(2) Order the defendant to pay the plaintiff’s costs of, and incidental to, the defendant’s notice of motion filed 14 February 2024.

Catchwords:
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – where defendant alleges the plaintiff is an employee of the defendant – where it is agreed that “pre-filing requirements” under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) have not been complied with – triable issue of fact found – application for summary dismissal dismissed
CIVIL PROCEDURE – separate determination of questions – application for separate determination of whether the plaintiff is a worker employed by the defendant within the meaning of ss 4 and 5 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – application for separate determination dismissed

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:
Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103
Crawley v Vero Insurance Ltd [2012] NSWSC 593
Cruden v Sae-Ung [2021] NSWSC 1070
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
SilvertonLtdvHarvey [1975] 1 NSWLR 659
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19
Tran v Vo [2017] NSWCA 134
Ugur v Attorney General for New South Wales [2019] NSWCA 86
Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66
Wickstead v Browne (1992) 30 NSWLR 1

Category: Procedural rulings
Parties: Donika Mills (plaintiff/respondent)
Dunpec Pty Ltd (defendant/applicant)
Representation:
Counsel:
S Kettle (plaintiff/respondent)
H Pararajasingham (defendant/applicant)
Solicitors:
Stacks Law Firm (plaintiff/respondent)
Holman Webb Lawyers (defendant/applicant)

File Number(s): 2018/00099563
Publication restriction: Nil

JUDGMENT EX TEMPORE

HIS HONOUR: On 30 March 2015, Donika Mills (‘the plaintiff’), whilst working at the IGA grocery store in Cobar, NSW, sustained injury to her lower back. The precise manner in which the plaintiff came to be injured is not presently material. It is sufficient to merely note that, according to the plaintiff, it occurred whilst…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mills v Dunpec Pty Ltd

Details

AGLC: Mills v Dunpec Pty Ltd [2024] NSWSC 340
Case: [2024] NSWSC 340
Decision Date: 02 April 2024

CaseChat Overview and Summary

The matter before the court was an application by Dunpec Pty Ltd for summary dismissal of proceedings brought by Mills. Mills alleged that he suffered injuries as a result of an incident at work, and sought damages. Dunpec argued that Mills was an employee of the company and that the proceedings should be dismissed because Mills had not complied with the pre-filing requirements under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Mills, in turn, denied that he was an employee of Dunpec and argued that there was a genuine issue of fact as to whether he was an employee within the meaning of the Act.

The central legal issues before the court were whether Mills was an employee of Dunpec, and if so, whether the pre-filing requirements under the Act had been complied with. The court needed to determine whether there was a genuine issue of fact that precluded summary dismissal and whether it should make a separate determination as to the status of Mills as an employee.

The court found that there was a genuine issue of fact as to whether Mills was an employee of Dunpec within the meaning of the Act, as there were conflicting affidavits on the matter. The court held that it would not make a separate determination of the issue, as it was preferable to decide the matter on the merits. The court also found that the pre-filing requirements under the Act had not been complied with, but this did not preclude the court from exercising its discretion to dismiss the proceedings on the basis that there was no reasonable cause of action disclosed. However, the court dismissed the application for summary dismissal, as there was a genuine issue of fact as to whether Mills was an employee of Dunpec.

The court dismissed the application for summary dismissal and the application for a separate determination as to the status of Mills as an employee. The proceedings were to continue to a trial on the merits.

Orders