Mills v Dunpec Pty Ltd

[2024] NSWSC 340

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

1. 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 she was in a cool room, seeking to retrieve stock that was located on shelving. The plaintiff had bent over to position herself under a shelf in order to grab a bag of potatoes. The shelving was some 1-1.5 metres deep. Having grabbed the bag of potatoes, whilst in the process of standing up, her back struck a sharp metal bar that formed part of the higher metal shelving.

2. By statement of claim filed in the District Court on 29 March 2018, the plaintiff commenced proceedings alleging that the injuries sustained in the accident on 30 March 2015 were caused by the negligence of, and breach of duty by, Dunpec Pty Ltd (‘the defendant’) as the occupier of the premises where she worked. Her essential complaint is that it owed, and breached, a duty of care owed to her to provide premises that were reasonably safe. The breach of that duty was said to be demonstrated by the presence of that sharp metal bar that was said to be unsafe and created a risk of harm warranting a response to make it safe and minimise that risk of harm.

3. Initially, in the defence that was filed on 27 June 2022, the defendant specifically pleaded that the plaintiff “was not an employee of the defendant”. The position adopted by the defendant appeared to be that the plaintiff was employed by Khan’s Supermarket (Cobar) Pty Ltd (‘Khan’s’). However, by amended defence filed 30 May 2023, the defendant resiled from this position and relevantly alleged that, although the defendant admitted it was the occupier of the premises, it also employed the plaintiff.

4. A consequence of the defendant alleging that the plaintiff was its employee – strictly, a worker employed by them within the terms of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (‘the WIM Act’) – is that, rather than any entitlement to damages being assessed under the Civil Liability Act 2002 (NSW), the plaintiff’s claim for damages would be governed by Part 5 of the Workers Compensation Act 1987 (NSW) (‘the WCA’). Another consequence (or possible consequence) is that, in order for the plaintiff to have an entitlement to commence such proceedings seeking to recover modified damages under Part 5 of the WCA, the plaintiff was obliged to comply with what was described in submissions as the “pre-filing requirements” set out in the WIM Act. Those requirements – which were not specifically identified in the defendant’s written submissions nor, in fact, are they referred to in the amended defence filed (see the amended defence, par 5B) – are presumably a reference to those set out in Chapter 7, Part 6, Division 3 of the WIM Act, and is a reference to ss 314 and 315 of that Act in particular. Put simply, s 315 of the WIM Act requires a person seeking to bring a work injury damages claim against their employer to serve a pre-filing statement upon the defendant employer before proceedings for those damages can be commenced and s 314 of the WIM Act prevents a pre-filing statement being served if there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages. It should also be noted, for completeness, that s 318A(1) of the WIM Act requires the parties to a work injury damages claim to attend a compulsory mediation before a plaintiff can commence court proceedings to recover those damages.

5. The plaintiff accepts that she has not complied with those requirements simply because, on her case, she is not required to: she was not employed by the defendant, but by Khan’s.

6. The defendant, however, by notice of motion filed 14 February 2024 seeks summary relief, pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), arguing that the proceedings should be dismissed because the proceedings disclose no reasonable cause of action. The nub of the argument is that, contrary to what the plaintiff alleges, the defendant in fact employed her and, given that the plaintiff accepts that the “pre-filing requirements” under the WIM Act have not been complied with, summary relief must follow.

7. The defendant also seeks, in the alternative, an order that there be a separate determination under r 28.2 of the UCPR, with the question identified as: is the plaintiff 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).

8. I will deal first with the application for summary relief.

Summary relief: the rule and principles

9. Rule 13.4(1) of the UCPR provides:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

10. The defendant, as earlier noted, specifically relied upon r 13.4(1)(b).

11. A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [70].

12. The relevant principles that govern summary relief are settled: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1 (‘Dey’); General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69 (‘General Steel’). In General Steel, Barwick CJ explained the principles in these terms (at 129):

The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.

13. The Court of Appeal summarised the relevant principles in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196]-[200]:

[196] It is not in dispute that ‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal’: General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ).

[197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:

‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’

[198] Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].

[199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:

‘The question is … whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated.’

[200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].

14. It is important to emphasise that an order under r 13.4(1) is not appropriately made except in the clearest of case, and the power that is available is to be exercised sparingly and with restraint.

The basis for summary relief

15. The argument for the defendant essentially reduced to two overlapping submissions: first, that the Court would find that the plaintiff was an employee (or worker) of the defendant; and, secondly, given that finding, because the plaintiff conceded that she had not complied with the “pre-filing requirements” under the WIM Act, that the proceedings must be dismissed.

Issue 1: whether the plaintiff was employed by the defendant

16. The first issue raised by the defendant that was said to disclose no reasonable cause of action is that she was employed by the defendant. This issue reduces to a question about whether the plaintiff is a worker of the defendant within s 4 of the WIM Act. More accurately, the issue concerns which of two entities employed the plaintiff.

17. In connection with the resolution of this issue on the present application, the following matters should be noted. First, this is not a case where it is suggested that the plaintiff was in a relationship of principal and independent contractor to the defendant or other party; rather, the case is only concerned with whether the plaintiff was a worker or employee of the defendant or Khan’s. Secondly, and following on from the first matter, it is accepted that there was no written contract of employment in place. Thirdly, the parties approached the matter on the footing that, in order to resolve the question of employment raised, the Court would consider the “totality of the relationship” between the parties: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1, 24, 29, 35-37; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 at [24]. In dealing with the matter in this way, I express no view as to the correctness of the approach: the present application does not call for any close analysis of the principles that apply.

18. The defendant’s argument was that, having regard to the “totality of the relationship”, in particular the prominence of the defendant in managing the supermarket and the “comparatively limited and specific role of Khan’s”, the Court should find that the defendant was the plaintiff’s employer (defendant’s submissions at [11]). In this respect, the defendant emphasised that although Khan’s paid the plaintiff’s wages, the other matters ultimately told against any conclusion that the plaintiff was employed by that entity. The defendant also argued that the plaintiff had not demonstrated that “control” rested with Khan’s, albeit acknowledging that such a factor was merely one that was relevant to be considered in the present context.

19. By way of contrast, the plaintiff relied upon the following key matters that were argued provide “sufficient indicia of employment” with Khan’s to demonstrate that, in fact, she was employed by them but also, at a minimum, demonstrates why summary relief was inappropriate (plaintiff’s submissions at [16]-[17], [19] and [22]):

1. the “register of injuries” completed following the plaintiff’s accident identified the plaintiff’s employer as “Khan’s” (affidavit of Justin Stack sworn 22 February 2024, annexure A);

2. the plaintiff’s wages (and tax deducted) and compulsory superannuation were paid by Khan’s (affidavit of Justin Stack sworn 22 February 2024, annexure B); in fact, it is admitted by the defendant that all persons working at the IGA supermarket at Cobar, including the managers, “have their wages and entitlements paid” by Khan’s (affidavit of Geoffrey Hill affirmed 13 February 2024, par 11);

3. the workers compensation insurer identified the plaintiff’s employer (for whom they necessarily issued the statutory policy) as Khan’s (affidavit of Justin Stack sworn 22 February 2024, annexure F). It is possible to infer that a policy would only issue on the application of Khan’s. This was confirmed by the workers compensation insurer in a letter dated 5 March 2024. Mr. Hill gave some evidence that, on one view, was at odds with this, but that merely confirms there is a contest about that issue of fact. It was not disputed that the payments of compensation made to the plaintiff were made pursuant to the terms of that policy.

20. The plaintiff also submitted that there was a triable issue in connection with control given that the supervisors and managers of the supermarket were, at a minimum, paid by Khan’s.

21. It is important to emphasise a number of matters in connection with the resolution of this issue. First, the defendant bears the onus of satisfying the Court that there is no real question to be tried. Secondly, on an application such as this, the Court undertakes an examination of the evidence not for the purpose of making findings of fact “where the material conflicts”, but to determine whether a triable issue is disclosed: Wickstead v Browne (1992) 30 NSWLR 1, 9. Thirdly, as was made clear in Dey (at 91), “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend on it, then it is not competent for the court to dismiss the action…”.

22. In my view, the earlier review of the evidence directed to proving the employment issue (notably that raised by the plaintiff in [19], above) satisfies me that there is a real question to be determined. It cannot be said that there is a high degree of certainty about the ultimate outcome of that question. It follows, particularly given that the power to summarily dismiss a claim is to be exercised “sparingly and with restraint”, that because the defendant has failed to clearly demonstrate, as it argued, that there is “no reasonable cause of action” based upon what was argued to be resolution of this factual issue, the application for summary relief must be dismissed.

Issue 2: Non-compliance with the “pre-filing requirements” mandates dismissal

23. Given the conclusion that I have reached in connection with the first part of the defendant’s argument, the second part of the defendant’s argument – namely that, given the plaintiff’s acceptance that the “pre-filing requirements” under the WIM Act had not been complied with, it necessarily followed that the proceedings must be dismissed – does not, strictly, arise. Nevertheless, I will address it, albeit somewhat more concisely.

24. The written submissions of the defendant did not address why the proceedings were required to be dismissed if the plaintiff was found to be a worker of the defendant. All that was said in the defendant’s written submissions on this issue was that, given “[s]uch requirements have not been discharged…the current proceedings must be dismissed” (defendant’s written submissions at [11]). Nothing was said about this issue in oral submissions.

25. Merely because the plaintiff conceded that those requirements had not been complied with does not of itself have the consequence contended for. The plaintiff, it should be emphasised, made a limited factual concession. That concession said nothing about the legal consequences that could or might follow from the non-compliance with the “pre-filing requirements”. Whether it would do so depends upon the proper construction of the “pre-filing requirements” of the WIM Act: see generally Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390 [93].

26. The defendant did not identify any authorities that suggested that consequence necessarily followed, nor (for completeness) did the plaintiff. Indeed, neither party referred to any authorities to support what was argued to be the outcome said to result from the “non-compliance”. Issues of this broad kind were discussed, but were unnecessary to resolve, in Tran v Vo [2017] NSWCA 134 at [5] and [62]-[67].

27. Although it may be accepted that, in an application for summary relief, detailed argument may be necessary, including detailed argument to determine a question of law, the Court will only summarily dismiss a matter based upon resolving a question of law if satisfied the point is clear: Silverton Ltd v Harvey [1975] 1 NSWLR 659, 665. I am far from satisfied that that is this case, particularly as there was nothing approaching full submissions on this issue.

23. For those reasons, I refuse the defendant’s application for summary relief.

The application for separate determination

Introduction

29. In the alternative to summary relief, the defendant sought an order that there be a separate determination of the question identified in [7], above – a question that essentially dealt with the issue relating to the plaintiff’s employment status.

30. The relevant principles relating to the power to order a separate determination have been summarised in a number of cases, including Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [87]-[97]. They have also been helpfully summarised in Crawley v Vero Insurance Ltd [2012] NSWSC 593 at [15]-[20] and in Cruden v Sae-Ung [2021] NSWSC 1070 at [41]-[42]. Drawing upon these, and other, authorities, the following matters warrant emphasis in connection with the defendant’s application.

31. First, it is generally considered appropriate that there should be a trial of all issues, not one or some: Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168] (‘Tepko’). Secondly, whilst the Court retains the discretion to order a separate determination of any question, the exercise of the discretion should be approached with a degree of care and caution. The necessity to approach the exercise of the discretion with “care and caution” may be said to reflect the fact that the “attractions of trials of issues rather than of cases in their totality, are often more chimerical than real.  Common experience demonstrates that savings in time and expense are often illusory”: Tepko at [168]. In Crawley v Vero Insurance Ltd [2012] NSWSC 593 at [17], Beech-Jones J (as his Honour then was) described it as “an exceptional measure”. That remains so, notwithstanding the terms of ss 56-58 of the Civil Procedure Act 2005 (NSW) (‘the CPA’) empower the Court to “take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously”: Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6]. Thirdly, it is for the defendant to demonstrate to the Court that a separate determination of the question proposed is appropriate.

Discussion and consideration

32. In my view, it is not appropriate to order the separate determination of the question proposed by the defendant. That is for the following reasons.

33. I consider the delay in raising this issue by the defendant, and the delay in moving for an order for there to be a separate determination of it, to tell against an order for the issue to be separately tried, and in advance of all other issues in the proceedings. As I have earlier noted, the proceedings were commenced in 2018 (and the accident itself occurred in 2015) and this issue was raised by the defendant in its amended defence in 2023. After that time, nothing occurred until the filing of the notice of motion on 14 February 2024. No evidence was adduced by the defendant that sought to explain that delay; at a minimum, the delay between May 2023 and the filing of the notice of motion on 14 February 2024. It is also relevant, in the present context, to note that, on 9 February 2024, the matter was fixed for hearing on 30 September 2024. To order a separate determination now, after the matter has been fixed for hearing and after the parties have prepared all their evidence across all issues is, to my mind, contrary to the overriding purpose and the dictates of justice (ss 56(2), 57 and 58 of the CPA).

34. Further, and following on in part from the historical delay, I consider that any order for separate determination at the present time has the very real potential of being productive of further delay, and to jeopardise the hearing. There would need to be a timetable for evidence – I emphasise here that the defendant only served much of its evidence slightly over one clear day prior to the hearing of this application. The plaintiff would be entitled to a reasonable period of time to consider this evidence, and to take whatever further investigative steps she and her legal advisers thought appropriate and prudent to respond to it. The plaintiff would then need to serve that evidence leading up to a hearing which, in reality, would be a few months prior to the hearing in fact allocated for the matter. There are other matters that I consider, at this late stage, tell against any order for separate determination, including the prospect of an appeal and the very real potential of multiple witnesses being the subject of cross examination on several occasions. Not only does that make a separate determination unattractive, but it also most likely makes it impractical. Once it is accepted that there was a very real potential of multiple witnesses being called on several occasions, there is the further potential for credibility findings which can create difficulties, such as the potential for the trial judge to disqualify themselves: Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66 at [12]-[14].

35. For these reasons, I refuse the application to have the employment issue separately determined.

Orders

36. For the above reasons, I make the following orders:

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.

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Decision last updated: 02 April 2024