Nguyen v Pham and Nguyen Pty Ltd
[2013] QDC 215
•27 September 2013
DISTRICT COURT OF QUEENSLAND
CITATION: | Nguyen v Pham & Nguyen Pty Ltd & Ors [2013] QDC 215 |
PARTIES: | Phu Van Nguyen (Plaintiff) v Pham & Nguyen Pty Ltd ACN 132 149 672 (First Defendant) Kien Quoc Pham (Second Defendant) Diem Thi Thu Nguyen (Third Defendant) & WorkCover Queensland (Third Party) |
FILE NO/S: | 1622/12 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 27 September 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 August 2013 |
JUDGE: | Kingham DCJ |
ORDER: | 1. It is determined that: the plaintiff was a “worker” within the meaning of s 11 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) when he suffered injuries on 1 May 2009 whilst present at premises located at 4/22 Aminya Street, Mansfield in the State of Queensland;(a) the plaintiff is a person referred to in s 237(1)(a)(i) of WCRA; (b) the plaintiff’s claim against the defendants is regulated by Chapter 5 of WCRA;(c) the plaintiff and the third party are required to comply with s 292 of WCRA;(d) the plaintiff and the third party have not complied with s 292 of WCRA;(e) the plaintiff is entitled to commence this proceeding as the pre-court steps under WCRA will be completed shortly;(f) this proceeding can be regularised by the plaintiff and the third party by complying with s 292 of WCRA;(g) the third party, pursuant to s 300(5) of WCRA, is entitled to the conduct of this proceeding on behalf of the defendants;(h) the third party is required to indemnify the defendants in respect of the plaintiff’s claim against the defendants.(i) 2. The plaintiff and the third party must resume and complete a compulsory conference pursuant to ss 289 & 292 of WCRA on a date to be agreed upon between the plaintiff and the third party; 3. The third party must pay the plaintiff’s standard costs of and incidental to the application before Baulch SC DCJ on 7 March 2013, the subsequent delivery of the judgment by Baulch SC DCJ on 15 March 2013, the hearing of the trial of the separate issues before Kingham DCJ on 29 August 2013 and of any further Court appearance required in relation to the application; 4. The third party must pay the defendants’ costs to be assessed on the standard basis of and incidental to: the defence of the plaintiff’s claim against the defendants;(a) the defendant’s claim against the third party;(b) the application before Baulch SC DCJ on 7 March 2013, including appearances on 15 March 2013 and 29 August 2013, and of any further court appearance required in relation to the application.(c) |
CATCHWORDS: | PRACTICE & PROCEDURE - ADJOURNMENT - where the question of whether the plaintiff was a worker was listed in March 2013 for determination as a preliminary question in August 2013 - where WorkCover requested an adjournment in order to locate the second and third defendants to serve subpoenas - where there was an admission in the defence that the plaintiff was an employee - where the delay in contacting the second and third defendants was not attributable to the conduct of the plaintiff or the representatives of the defendants - whether the hearing should be adjourned. WORKERS’ COMPENSATION - WORKER - where WorkCover denied the plaintiff was a worker - where there was uncontested evidence by the plaintiff that he was paid to do work for the defendants - where the court accepted the plaintiff's evidence - where the parties agreed on appropriate orders and directions consequent on the court's finding. Uniform Civil Procedure Rules 1999 (Qld), rr 5 & 477. Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 11 & 558(2). Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, followed. |
COUNSEL: | Mr. J. Kimmins for the Plaintiff. Mr. A.S. Mellick for the Defendants. Mr. M. O’Sullivan for the Third Party. |
SOLICITORS: | Stockley Furlong Lawyers for the Plaintiff. Carter Newell Lawyers for the Defendants. Mullins Lawyers for the Third Party. |
1.) Background
One of Mr Nguyen’s fingers was amputated after he injured his right hand on 1 May 2009 when he moved a heavy statue at a shop operated by Pham & Nguyen Pty Ltd in Mansfield. He commenced proceedings for damages for personal injuries. He claims Pham & Nguyen breached its duty of care to him as an employee. WorkCover Queensland, a third party to the proceedings, denied Mr Nguyen was an employee and declined to indemnify the company, Pham & Nguyen. Its position is based on statements made in December 2009 by the second and third defendants (Mr Pham and Ms Nguyen), who are the directors of the company, to the effect that Mr Nguyen was not their employee.
In March 2013, his Honour Judge Baulch SC ordered the question of Mr Nguyen’s status as a worker, and related issues arising under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), be determined as preliminary issues. The matter came on before me for hearing on 29 August 2013. That morning, WorkCover asked me to adjourn the hearing because it had been unable to serve subpoenas on the directors to give evidence at the hearing. It had only recently appreciated that the lawyers for the defendants did not intend to call them to give evidence. Last minute attempts to serve the directors personally had failed.
As Mr Nguyen had attended the hearing to give evidence and both he and the lawyers for the defendants opposed the application to adjourn, I took evidence from him before hearing argument on the application to adjourn.
2.) Mr Nguyen’s evidence about employment by Pham & Nguyen
Mr Nguyen said he had known Mr Pham and Ms Nguyen when they were neighbours in Durack. Mr Pham had previously employed him casually in a restaurant in Kenmore. In April 2009, at Mr Pham’s request, Mr Nguyen worked at a shop operated by the company which sold art and sculpture. He said he worked at the shop on a number of occasions before the date of the injury. His role was to assist in getting the premises ready for opening. He was paid by both Mrs Nguyen and Mr Pham who gave him cash in hand for his labour. He said he went to the shop on 1 May 2009 at Mr Pham’s request and was moving a statue at Mr Pham’s direction when his hand was injured. Under cross-examination, Mr Nguyen did not resile from his evidence that he was paid to do work at Mr Pham’s request.
3.) The application to adjourn
After hearing from the parties on WorkCover’s application to adjourn, I declined to adjourn the hearing for the following reasons.
Firstly, I was concerned about the impact of further delay on finalising Mr Nguyen’s claim in a timely way. As the matter was part heard before me, it would have to be adjourned to my next civil sittings in November, some three months hence. There had already been a significant delay in the proceedings. Mr Nguyen lodged his application for compensation on 21 May 2009. The application was rejected by WorkCover. Q-Comp rejected Mr Nguyen’s application to review that decision and he appealed to the Industrial Magistrate.
On 7 July 2010 an Industrial Magistrate made orders by consent that included an order that Mr Nguyen was a worker within the meaning of section 11 of the WCRA.
Thereafter, it seemed that both parties proceeded on that basis until June 2011 when WorkCover advised Mr Nguyen’s solicitors that it denied liability. By the conclusion of the compulsory conference in September 2011 it was evident that WorkCover maintained that Mr Nguyen was not a worker, despite the Industrial Magistrate’s order and despite having proceeded to deal with his claim under the WCRA.
In May 2012, the defendants, then represented by lawyers engaged by the company’s public liability insurer, issued a statement of claim against WorkCover as a third party, in which they pleaded that Mr Nguyen was a worker within the meaning of s.11 of the WCRA. On 28 March this year, the defendants filed an amended defence in which they admitted Mr Nguyen’s status as a worker.
It was not until August 2013 that the solicitors for WorkCover specifically inquired of the solicitors for defendants whether it proposed to obtain affidavits from Mr Pham and Ms Nguyen. Once they received a negative response, the solicitors moved promptly, but unsuccessfully, to serve subpoenas on the directors.
What is evident from that history is that the delay in determining the issue of Mr Nguyen’s employment status is not of his making. That was a significant factor in my decision to refuse the application to adjourn the hearing. He has maintained he was a worker from the outset. He moved quickly to make a claim for compensation and promptly exercised his rights to review adverse decisions by WorkCover and Q-Comp. All parties were aware from March this year that the hearing would proceed on 29 August 2013. Mr Nguyen was prepared to proceed and had attended in order to give evidence about the matter.
The second factor was WorkCover’s knowledge of the position taken by the defendants in these proceedings in relation to the Mr Nguyen’s status as a worker. I see no basis for WorkCover reasonably believing that the defendants would lead evidence from Mr Pham and Ms Nguyen at this hearing that was contrary to their position as formally pleaded, both in the statement of claim against WorkCover as third party, filed in May 2012 and in the amended defence to the Plaintiff’s claim, filed in March this year.
I accept that WorkCover’s representatives would proceed with caution before making a direct approach to Mr Pham or Ms Nguyen, who are named parties in the proceedings. Nevertheless, there was nothing preventing WorkCover’s representatives from making an earlier approach to the defendant’s solicitors. In my view, its delay in doing so was not satisfactorily explained.
The court's power to adjourn[1] must be exercised in accordance with the object of the rules to facilitate the just and expeditious resolution of the real issues in the proceedings at a minimum of expense.[2] The parties are obliged to proceed expeditiously.[3] An order for costs thrown away if the hearing is adjourned is not a just outcome given the parties' obligations and the history of these proceedings. Under the modern common law adversarial system, the courts must have regard to undue delay and its effect on the parties to the litigation as well as upon the court and other litigants.[4]
[1] Rule 477 Uniform Civil Procedure Rules 1999 (Qld).
[2] Rule 5 Uniform Civil Procedure Rules 1999 (Qld).
[3] Rule 5(3) Uniform Civil Procedure Rules 1999 (Qld).
[4] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 189[24] per French CJ & 211[93] per Gummow, Hayne, Crennan, Kiefel & Bell JJ.
Counsel for the defendants opposed the adjournment because, he argued, there would be no utility in adjourning the proceedings. He urged the court to accept that the issue is determined by the Industrial Magistrate’s order which was substituted as the decision of WorkCover.[5] He submitted the effect of the statutory scheme under the WCRA was that WorkCover could not now revisit the issue. Because I was against WorkCover’s application for the reasons stated above, I did not express my view on those arguments, which I reserved for consideration on the application proper.
[5] Section 558(2) Workers’ Compensation and Rehabilitation Act 2003 (Qld).
Finally, WorkCover raised the position of the second and third defendants with respect to their obligations under the WCRA, particularly to take out a policy of insurance. They were not present and may not be aware of their exposure, potentially to penalty.
The solicitors for the defendants did make some attempt to contact the directors personally. In a letter dated 19 June 2013, albeit addressed to the company of which they are directors, the solicitors for the defendants were explicit about the position that the company’s insurer would take in the litigation with respect to Mr Nguyen’s employment status.[6] They advised them to obtain independent legal advice. There is no evidence that Mr Pham and Ms Nguyen received the letter, which was sent to the address of the business. However, there is evidence that their son, who evidently lives with them at their residential address, was made aware on 23 and 26 August that WorkCover’s lawyers were endeavouring to make contact with them about these proceedings. Mr Pham and Ms Nguyen did not make contact with the representatives of either WorkCover or the defendants. I was not persuaded that their potential exposure to penalty was a reason to adjourn the hearing.
[6] Exhibit 4 – Letter from Carter Newell Lawyers to C & M Nguyen & Pham Company Pty Ltd, 19/06/13.
4.) The preliminary determination
When I announced my decision to refuse the application to adjourn, counsel for WorkCover conceded that the questions for determination would be determined on the basis that Mr Nguyen was a worker, if I accepted Mr Nguyen’s evidence. Once allowances were made for some miscommunications arising from language difficulties, I found Mr Nguyen’s evidence to be clear and forthright. It was consistent, also, with the position he has maintained since the injury occurred in May 2009. Under cross-examination his account was not undermined by any inconsistencies or conflicts which caused me to question his truthfulness. I indicated that I did accept his evidence about his employment.
A consequence of WorkCover’s concession is that, however interesting or compelling, it was not necessary for me to adjudicate on the arguments made by counsel for the defendants about the effect of the decision of the Industrial Magistrate in the context of the WCRA.
The parties were given time to agree upon final orders which give effect to my decision and directions about the further conduct of the matter. They are now to hand.
5.) Orders
Accordingly, I make the following orders:
1. It is determined that:
(a) the plaintiff was a “worker” within the meaning of s 11 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) when he suffered injuries on 1 May 2009 whilst present at premises located at 4/22 Aminya Street, Mansfield in the State of Queensland;
(b) the plaintiff is a person referred to in s 237(1)(a)(i) of WCRA;
(c) the plaintiff’s claim against the defendants is regulated by Chapter 5 of WCRA;
(d) the plaintiff and the third party are required to comply with s 292 of WCRA;
(e) the plaintiff and the third party have not complied with s 292 of WCRA;
(f) the plaintiff is entitled to commence this proceeding as the pre-court steps under WCRA will be completed shortly;
(g) this proceeding can be regularised by the plaintiff and the third party by complying with s 292 of WCRA;
(h) the third party, pursuant to s 300(5) of WCRA, is entitled to the conduct of this proceeding on behalf of the defendants;
(i) the third party is required to indemnify the defendants in respect of the plaintiff’s claim against the defendants.
2. The plaintiff and the third party must resume and complete a compulsory conference pursuant to ss 289 & 292 of WCRA on a date to be agreed upon between the plaintiff and the third party;
3. The third party must pay the plaintiff’s standard costs of and incidental to the application before Baulch SC DCJ on 7 March 2013, the subsequent delivery of the judgment by Baulch SC DCJ on 15 March 2013, the hearing of the trial of the separate issues before Kingham DCJ on 29 August 2013 and of any further Court appearance required in relation to the application; and
4. The third party must pay the defendants’ costs to be assessed on the standard basis of and incidental to:
(a) the defence of the plaintiff’s claim against the defendants;
(b) the defendant’s claim against the third party;
(c) the application before Baulch SC DCJ on 7 March 2013, including appearances on 15 March 2013 and 29 August 2013, and of any further court appearance required in relation to the application.
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