Priddle v FCL Construction Pty Ltd - [2003] WADC 127

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PRIDDLE -v- FCL CONSTRUCTION PTY LTD [2003] WADC 127

CORAM: DEANE DCJ

HEARD: 26 MAY 2003

DELIVERED : 4 JUNE 2003

FILE NO/S: CIV 1868 of 2002

BETWEEN: ANTHONY JOSEPH PRIDDLE
Plaintiff
AND
FCL CONSTRUCTION PTY LTD
Defendant

Catchwords:

Application for stay of proceedings in District Court claim for personal injury pending determination of appeal to Compensation Magistrate

Legislation:

Workers' Compensation & Rehabilitation Act 1981

Workers' Compensation & Rehabilitation Regulations 1982

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr J B Schneider
Defendant: Mr J I Winter

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Jackson McDonald

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

Farmer v AOC Australia Pty Ltd [2002] WASCA 340
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd & Ors [2001] WASC 280
Midgley v Murray River North Pty Ltd [2003] WADC 31
Re Monger; Ex parte Ivey [1999] WASC 250

Case(s) also cited:

Hamersley Iron Pty Ltd v Lovell & Ors (1998) 20 WAR 79

DEANE DCJ: In this matter the defendant makes an application for an order that the proceedings in this action, CIV 1868 of 2002, to be stayed pending the ultimate determination of an appeal from a decision of a Review Officer of the Workers' Compensation Conciliation and Review Directorate delivered on 28 June 2002, the appeal of which was heard by a Compensation Magistrate on 10 February 2003 and the determination of writs of certiorari in matter CIV 2171 of 2002 and matter CIV 2172 of 2002 issued out of the Supreme Court of Western Australia.
It is necessary to turn briefly to a history of the matter to date in order to understand how this application comes about. The defendant was the plaintiff's employer as at the date of the alleged accident on 24 October 2000. Subsequently the plaintiff applied to the Director of the Conciliation and Review Directorate seeking to have his relevant level of disability assessed for the purposes of s 93D of the Workers' Compensation & Rehabilitation Act 1981 (as amended) ("the Act"). The plaintiff sought a determination that he had suffered a permanent degree of disability of not less than 30 per cent as the parties were unable to agree as to the extent of the plaintiff's level of disability.
The review hearing occurred on 11 June 2002 and on 28 June 2002 the Review Officer made a determination that the plaintiff's level of disability for the purposes of s 93D of the Act was not less than 16 per cent. Following this, on 9 July 2002 the plaintiff made an election pursuant to s 93E(3)(b) of the Act and regulations 19M(1) and 19M(3) of the Workers' Compensation & Rehabilitation Regulations 1982 ('the Regulations") to retain his right to seek damages. This election to retain the right to seek damages was registered pursuant to the aforementioned regulations on 9 July 2002…

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 Priddle v FCL Construction Pty Ltd

Details

AGLC: Priddle v FCL Construction Pty Ltd [2003] WADC 127
Case: [2003] WADC 127
Decision Date: 4 JUNE 2003

CaseChat Overview and Summary

Priddle v FCL Construction Pty Ltd is an appeal case where the defendant sought a stay of proceedings in a District Court claim for personal injury, pending the determination of an appeal to the Compensation Magistrate. The plaintiff had made an election to seek damages under section 31 of the Workers Compensation and Rehabilitation Act 2003 (WA), which required him to forgo weekly compensation payments. The defendant, having appealed the Review Officer's determination, argued that a stay was necessary to avoid unnecessary costs and potential irreparable prejudice, should the appeal be decided in its favour.

The central legal issues before the court were whether it was appropriate to grant a stay of proceedings in the District Court pending the outcome of the appeal, and if such a stay would cause undue hardship to the plaintiff. The court needed to weigh the potential prejudice to the defendant against the plaintiff's right to pursue his claim for damages, particularly in light of the plaintiff's election to forgo weekly compensation payments.

The court determined that it was not appropriate to grant a stay of proceedings. It found that the plaintiff, having made an election to seek damages, was not prejudiced by the continuation of the District Court action. The court reasoned that the plaintiff was not in receipt of weekly compensation payments, which aligned with the intended effect of the legislation when an election is made. Consequently, the court held that the potential prejudice to the plaintiff was not significant enough to warrant a stay of proceedings. The court also noted that the defendant's appeal concerned the Review Officer's determination regarding the degree of disability, which was distinct from the plaintiff's election to seek damages.

As a result, the application for a stay of proceedings was dismissed. The court ordered that the District Court proceedings could continue, allowing the plaintiff to pursue his claim for damages without undue delay.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The defendant, in addition to filing a notice of appeal against the Review Officer's determination, also applied for writs of certiorari in application CIV 2171 of 2002 and CIV 2172 of 2002 to quash the Director's decision to accept the plaintiff's application relevant to a referral of question of degree of disability and the notice of referral of question of degree of disability as well as the referral of the question of the plaintiff's degree of disability to a Review Officer. Application CIV 2172 of 2002 relates to a writ of certiorari to quash the Director's decision to issue an "Election to obtain right to seek damages" form to the plaintiff. Both those applications were heard before a Judge of the Supreme Court on 4 September 2002 and rules nisi were issued in respect of both applications. In order to avoid unnecessary costs being incurred, however, counsel for the defendant advised that it has not proceeded further with respect to those writs of certiorari pending the determination of the appeal in McMullen v Western Power Corporation. Relevant to action CIV 1868 of 2002 in the District Court, counsel for the defendant informed the Court that pleadings have closed and discovery has been given. Putting aside the issue of whether it would be competent for the plaintiff to proceed with the action if the appeal to the Compensation Magistrate were ultimately determined in the defendant's favour, it is said that the action is now at a point where it is ready to be entered for trial. Counsel for the defendant argued that if in fact the action in the District Court is permitted to be entered for trial and does proceed to trial before the learned Compensation Magistrate hands down his decision, then the defendant would suffer irreparable prejudice if that appeal were to be determined in its favour. It is submitted that the prejudice suffered could not be cured by an order for costs or other relief. In addition it is asserted that it is arguable on the part of the defendant that it is not competent for the Director or a Review Officer acting as his delegate, to find that the plaintiff has not satisfied the requirements for the disability nominated, in this case being 30 per cent, and then to make a determination or finding that the plaintiff has suffered a lesser specified degree of disability; Midgley v Murray River North Pty Ltd [2003] WADC 31. Further it is argued that if the defendant is successful in its appeal from the decision of the Review Officer it may be that the District Court would never be in a position to award damages to the plaintiff; Farmer v AOC Australia Pty Ltd [2002] WASCA 340. In the end counsel for the defendant submitted that it is both practical and desirable that a stay of proceedings be granted pending the determination of its appeal in order that both parties avoid unnecessarily incurring costs and further that the defendant not be placed in a position where any prejudice suffered by it could not be cured. On the other hand counsel for the defendant rejected the proposition that if a stay is granted the prejudice to the plaintiff would be considerable, pointing out that currently the plaintiff, as a result of his election, is not in receipt of weekly payments of compensation and that this in fact is the intended effect of the legislation when an election is made.