Morseu v Robe River Mining Co Pty Ltd - [2006] WADC 27

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MORSEU -v- ROBE RIVER MINING CO PTY LTD & ANOR [2006] WADC 27

CORAM: FENBURY DCJ

HEARD: 30 JANUARY 2006

DELIVERED : 10 MARCH 2006

FILE NO/S: CIV 3197 of 2002

BETWEEN: ROY MORSEU
Plaintiff
AND
ROBE RIVER MINING CO PTY LTD
First Defendant
YALLEEN PASTORAL CO PTY LTD
Second Defendant

Catchwords:

Appeal from decision of Deputy Registrar - Meaning of "liberty to apply" - Turns on own facts

Legislation:

Highways (Liability for Straying Animals) Act 1983
Workers' Compensation and Rehabilitation Act Pt IV Div 2

District Court Act 1969

Result:

Appeal dismissed
Plaintiff to pay defendants' costs to be taxed if not agreed

Representation:

Counsel:

Plaintiff:     Mr L Gandini
First Defendant             :     Mr M L Williams
Second Defendant         :     Mr M LWilliams

Solicitors:

Plaintiff:     Chapmans
First Defendant             :     Phillips Fox
Second Defendant         :     Phillips Fox

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

Cristel v Cristel [1951] 2 All ER 574

Case(s) also cited:

Nil

FENBURY DCJ: The plaintiff brings this action for damages for injuries allegedly suffered by him on 18 January 2000. He alleges that whilst he was driving along an access road through the second defendant's pastoral station, his truck struck a Brahmin bull and he suffered personal injuries.
At the time the plaintiff was employed as a loader operator by a company named Barclay Mowlem Construction Ltd, later added as a third party to the action, then removed as a party. Barclay Mowlem had been engaged by the first defendant to do certain construction work.
In the writ the plaintiff alleges the first and second defendants are guilty of, firstly, negligence – sometimes termed ordinary or common law negligence; secondly, negligence as occupiers of the land and; thirdly breach of statutory duty namely the Highways (Liability for Straying Animals) Act 1983.
By chamber summons dated 15 March 2004 and filed on 23 March, the first and second defendants sought orders that the plaintiff's action be stayed. The basis of the application is succinctly put in the affidavit of Catherine Elphick sworn and filed 5 April 2004. The argument relates to the application of restrictions on awards for damages against employers contained in Pt IV Div 2 of the Workers' Compensation and Rehabilitation Act to principals who are deemed employers under s 175.
As sworn in Ms Elphick's affidavit:
"4.The first defendant has pleaded in its amended defence that it is a principal for the purposes of s 175 of the Act and deemed by that section to be the plaintiff's employer for the purposes of the Act.
5.The plaintiff has not pleaded separate causes of action against the first and second defendants.
6.I have been advised by the staff at the Work Cover Reconciliation and Review Directorate and I believe that to date the plaintiff has not –
6.1agreed his degree of disability with his employer Barclay Mowlem Construction Ltd;
6.2agreed his degree of disability with the first defendant;
6.3applied to have or had his degree of disability determined in the Workers Compensation and Review Directorate for the purposes of the Act.
7.By virtue of the facts pleaded in pars 4 and 5 above, the plaintiff is not entitled to be awarded damages against the first defendant further to s 39E(3) of the Act."
On 5 April 2004 a deputy registrar of this Court dismissed the first and second defendants' application.
On appeal to a Judge of this Court heard on 31 May 2004 and determined on 21 July, (2004 WADC 142) the deputy registrar's order was set aside, the action was stayed and, apart from costs, the Judge order there be "liberty to apply".
In purported exercise of that "freedom" the plaintiff, by way of the original chamber summons dated 15 March 2004, sought to have the stay order made by the Judge on 21 July in favour of the first and second defendants removed. In lieu thereof, the plaintiff sought orders that the stay, in favour of the second defendant, be lifted and the plaintiff have leave to continue his action against the second defendant. It was put in support of this application that:
"The second defendant cannot under any circumstances maintain a claim pursuant to s 175 of the Workers' Compensation and Rehabilitation Act 1981 to defeat the plaintiff's claim."
Given the second defendant is merely the pastoral company that owned and occupied the land on which the offending bull grazed, and from which, perhaps, it escaped, the point appears arguable.
On 25 October 2005 a deputy registrar of the court dismissed the plaintiff's application. Given the stay order was made by a Judge, perhaps that is not surprising. The plaintiff now appeals to the court on the following grounds:
"1.The learned review officer erred in law in refusing to lift the stay made previously in favour of the second defendant and accordingly in refusing to allow the plaintiff to proceed against the second defendant.
PARTICULARS
1.1the orders made by her Honour Deane J included an order that the plaintiff have liberty to apply;
1.2the plaintiff made application to the court pursuant to the order allowing him liberty to apply;
1.3the second defendant cannot under any circumstances maintain a claim pursuant to s 175 of the Workers Compensation and Rehabilitation Act 1981 to defeat the plaintiff's claim and the learned deputy registrar erred in not taking into account this relevant consideration in refusing to lift the stay made in favour of the second defendant".
In written submissions provided it was argued for the plaintiff that the making of an order that there be "liberty to apply", "encompassed a scenario whereby the plaintiff could apply back to the court with respect to the orders made as between the plaintiff and the first and second defendants".
It was further submitted that the court "in any event has inherent powers, either pursuant to the 'liberty to apply' order made by her Honour Deane DCJ, or alternatively pursuant to the inherent powers the court has to consider whether or not the stay as between the plaintiff and the second defendant continues to remain in place." And finally it was put that, in essence, the stay order made by her Honour with respect to the second defendant, being the pastoral company, was wrong; in other words "that in the circumstances the second defendant does not plead s 175 of the Act, could never establish the elements of s 175, and yet is in receipt of a stay against the plaintiff".
It was submitted on behalf of the first and second defendants in opposition that the order of Judge Deane granting liberty to apply must be considered in context. It was submitted that when so read it was clear that the "granting of liberty to apply was made in order that the plaintiff could apply to lift the stay in the event that he was either able to agree with the first defendant, that his degree of disability was not less than 30 per cent, or he was able to obtain a determination from the Work Cover Directorate to that extent".
It was submitted that her Honour's order granting liberty to apply should not be read in isolation as an order granting the plaintiff liberty to apply to lift the stay in any event. It was argued that the application for an order lifting the stay against the second defendant was, in reality, an attempt to have the orders of her Honour overturned, and that such a result can only be achieved by way of an appeal in accordance with the provisions of the District Court Act 1969. It was also submitted that the deputy registrar had no jurisdiction to overturn the decision of a Judge, nor does one District Court Judge have jurisdiction to overturn the decision of a fellow District Court Judge.
The argument throws up for question the meaning of the phrase "liberty to apply" when it forms part of an order made by a Judge in legal proceedings. In Cristel v Cristel [1951] 2 All ER 574, a family law case dealing with a claim for possession of the matrimonial home, the trial Judge made orders relating to what must be done by a husband to accommodate his wife, and made an order that there be liberty to apply. The husband sought to vary the Judge's order by including a provision that enabled him to provide her with a flat instead of a bungalow. A Court of Appeal that included Lord Justice Denning stated at 577 that, prima facie, the words "liberty to apply" refer to the working out of the actual terms of the order. The court stated that where an order of a Judge requires working out, then it is common for a Judge to make an order that there be liberty to apply. It enables the court to resolve any disputes on the way in which the Judge's order is to be implemented. Lord Justice Denning stated that when there was no change in the circumstances between when the order was made and when there is some variation sought pursuant to "liberty to apply", that a court could not alter or vary what had been agreed.
It is common ground that the events her Honour contemplated which might require a variation of her order that could be achieved upon the exercise of the liberty to so apply, had not occurred. There has been no change in the circumstances of the case. The plaintiff has not either been able to agree his degree of disability was not less than 30 per cent, nor has be obtained a determination to that extent.
Given there has been no change in circumstances, it seems to me there is no basis for varying the Judge's order. The plaintiff has not appealed against the decision.
In my view the Court has no jurisdiction to deal with this matter and no basis to vary the decision in any event.
The appeal must be dismissed and the plaintiff must pay the first and second defendants' costs to be taxed if not agreed.