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

1. 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. 

2. 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. 

3. 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 and as a consequence the plaintiff's weekly compensation wages and statutory entitlements ceased shortly after the date of election. 

4. On 10 July 2002 the plaintiff issued a writ of summons in the District Court in action CIV 1868 of 2002.  Counsel for the plaintiff advised the Court that as the plaintiff was required to make an election to proceed with common law proceedings and as a result of the cessation of the plaintiff's workers' compensation entitlements, litigation proceedings were instituted a day after the election in order to accelerate those proceedings and to avoid the ongoing burden to the plaintiff of not having an opportunity to receive workers' compensation payments. 

5. Following the determination of the Review Officer in June 2002 that the plaintiff's level of disability for the purposes of s 93D of the Act was not less than 16 per cent the defendant filed a notice of appeal asserting that it was not competent for the Review Officer to make a determination of a lesser level of disability than that nominated by the plaintiff, in this case being 30 per cent.  When that appeal came on for hearing before a Compensation Magistrate the defendant's application to adjourn the matter failed and the appeal was heard on 10 February 2003.  The learned Compensation Magistrate reserved his decision in the appeal. 

6. This Court was informed that it has now come to the attention of the defendant's solicitors that in the matter of McMullen v Western Power Corporation an employer has obtained leave of the Full Court of the Supreme Court of Western Australia to bring an appeal from a decision of the Compensation Magistrate's Court arising from an issue which it is said is identical to that determined by the Review Officer and heard before the Compensation Magistrate in this matter.  Counsel for the defendant submitted that it is considered that the Compensation Magistrate who heard the appeal in this present case will not hand down a decision until the Full Court makes a determination in the appeal of McMullen v Western Power Corporation since they involve substantially the same issues. 

7. Whilst there may be considerable merit in this view and whilst it also might be considered a commonsense approach, it is by no means clear that this is necessarily the case.  As I understand the submissions of counsel in this case the learned Compensation Magistrate did not indicate in clear terms on what basis he was reserving his decision or whether he intended to delay delivering his decision until after the determination of the appeal in McMullen v Western Power Corporation.  The Court in this application was not given any information or indication as to when it is likely that the Full Court will hear the appeal or deliver its decision in relation to it. 

8. 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. 

9. 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. 

10. 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.

11. 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. 

12. Counsel for the defendant stressed that if it is determined ultimately that the decision of the Review Officer in this matter was wrong, then effectively the plaintiff will be entitled to the remainder of his workers' compensation.  The concern of the defendant is that if the matter proceeds to trial in this Court then the defendant will incur significant costs in continuing to defend the common law proceedings when it is possible at the end of the day it may be that the plaintiff is found not to have such an entitlement.  In that way it is said that if a stay is not granted at this point in time, considerable time and resources may well be wasted on the part of both parties and this Court. 

13. Counsel for the plaintiff argued that Re Monger; Ex parte Ivey [1999] WASC 250 (10 December 1999) is authority for the proposition that a Review Officer has jurisdiction to determine either relevant level of disability. As against that, however, it would appear that there were amendments to the legislation impacting upon that issue, some short time after the decision was handed down. It is correct as counsel for the plaintiff submitted, that the essential issue of the appeal in this matter before the Compensation Magistrate in February this year was previously addressed in Western Power Corporation v McMullen – CM 39/02, but of course it is now clear that the decision is the subject of a proposed appeal before the Full Court of the Supreme Court.   In that sense it may be said that the state of the law in this regard is not entirely settled, although on the information currently available this is a somewhat speculative observation. 

14. As was observed in Midgley v Murray River North Pty Ltd (supra) relevant to an application for a stay of proceedings, "the principles which govern applications of the kind here being considered are not in doubt.  The Court should be cautious to deny a party's right to prosecute a claim but has a wide discretion to ensure that proceedings before it result in an effective disposition of the issues which have been raised and constitute an efficient use of the Court's resources and of the time and money of the parties".  A stay of proceedings is therefore only to be ordered where "special circumstances" exist; Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222‑223.

15. Whilst the application made on behalf of the defendant is not without merit, the real difficulty as I see it is that it is made against a background of considerable uncertainty.  There is no indication at all as to when the Compensation Magistrate will deliver his decision with respect to the defendant's appeal and so that determination may be made in the very near future or it may be that it will be delayed until the appeal in McMullen v Western Power Corporation is heard and determined in the Full Court.  This Court has been informed that leave to appeal in that matter has been granted but there is no information at all before it as to when that is likely to occur.  It is conceivable that it may be some time before that matter is concluded.  In the interim the plaintiff finds himself in the very difficult position of not being able to proceed further with his action in this Court.  I accept that the effect of the plaintiff's election is that his payments of compensation ceased, but the fact remains that he is currently not in receipt of any payments and has not been so for approximately 10 months.  Clearly the plaintiff has attempted to address his situation by proceeding expeditiously with his common law claim in this jurisdiction.  It would seem that the plaintiff made an election being unaware that the defendant intended to appeal the decision of the Review Officer. 

16. Notwithstanding that there is an arguable case for an appeal it is also necessary that in an application of this nature the Court weigh up the balance of convenience and rights of the parties; GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd & Ors [2001] WASC 280. Notwithstanding the possible effect that the defendant's appeal to the Compensation Magistrate and the result in the appeal which is to be heard in due course by the Full Court may have on the common law proceedings in this Court if they are heard and determined first, in my view the greater prejudice would result to the plaintiff. By virtue of a stay of these proceedings being granted the plaintiff may well be in a situation where he is prohibited for an indefinite period, which may be lengthy, from pursuing his claim in this Court. For that reason, although I am mindful of the need and desirability of avoiding the waste of resources and funds, I am not persuaded that an order for a stay of proceedings of the action CIV 1868 of 2002 is warranted at this point in time on the material before this Court. The defendant's application is therefore dismissed.