| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ROYAL -v- ALCO OF AUSTRALIA LIMITED [2003] WADC 286 CORAM : REGISTRAR KINGSLEY HEARD : 6/11/2003 DELIVERED : Delivered Extemporaneously on 6 NOVEMBER 2003 typed from tape and edited by Registrar FILE NO/S : CIV 2514 of 2002 BETWEEN : DARREN ROYAL Plaintiff
AND
ALCO OF AUSTRALIA LIMITED (ACN 004 879 298)
Defendant
Catchwords: Practice - Application to amend defence to plead s 175 of the Worker's Compensation & Rehabilitation Act
Legislation: Workers' Compensation & Rehabilitation Act
Result: Application allowed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr B L Nugawela
Defendant : Mr J P Allan
Solicitors:
Plaintiff : Friedman Lurie Singh
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Hewitt v Benale Pty Ltd [2002] WASC 163
Koljibabic v WMC Resources Ltd [2001] WADC 286
Case(s) also cited:
Nil
(Page 3)
1 REGISTRAR KINGSLEY: This is the defendant's application to amend its defence to plead the requirements of s 175 of the Workers' Compensation and Rehabilitation Act. The plaintiff commenced his action in September 2002. A full defence was filed in October 2002. What I mean by "full" is that it is not simply consisting of bare denials but does go into substantive issues.
2 As has been raised by plaintiff's counsel, the pleading by the defendant was filed on October 2002. At that time two decisions, those of Koljibabic v WMC Resources Ltd [2001] WADC 286andHewitt v Benale Pty Ltd [2002] WASC163had been heard. I accept from the bar table the statement of plaintiff's counsel that the defendant's present firm of solicitors were engaged in the case of Koljibabic of which the decision of Hewitt v Benale was set in contrast. 3 The plaintiff entered the action for trial on April 2003. There was an application in June 2003 to amend the defence, which the application was dismissed; the further application was filed on 9 September. Plaintiff's counsel has raised three issues in relation to s 175, two of which there is a suggestion by counsel for the plaintiff that an arguable issue arrises. But plaintiff's counsel refers particularly to s 175 (1) in relation to the contractual works. 4 The plaintiff was employed by G and F Beltline Services and he was sent to the defendant's workplace to repair conveyor belt B4NE, the north-east conveyor belt. In fact, as pleaded, the plaintiff does work on the north-west conveyor belt which is outside the scope of work. 5 The plaintiff was injured on the north-west conveyor belt. I have the benefit of the affidavit of Jerome Allen where a copy of the contract has been put in evidence. It is clear that the scope of work is certainly to provide conveyor belt splicing, repair, inspection, pulley lagging services, but in accordance with relevant documentation. In this case the relevant documentation, which is a maintenance work order, is for the north-east belt. 6 Section 175(1) refers to the execution of the work contracted and in the execution of the worth both principal and contractor are deemed to be employers of the worker. The plaintiff's counsel argues that the plaintiff does not fall within s 175(1) because the plaintiff is not undertaking the work contracted for. The benchmark for me in relation to this application is whether there is merit in raising s 175 in the defence. The issue is whether the proposition being put before me is at least arguable, and I
(Page 4)
think I am bound to say that the proposition being put by the defendant is not outside what could be regarded as arguable merit. 7 That being the case the next issue is has there been a delay? In the context of all of this, yes there has been a delay. On the second application the issue of delay has been fleshed out a little more fully. Considering the commonality of the defendant's solicitors in terms of previous hearings in which the issues involving s 175 have been thrown up in stark relief and the issues involving KoljibabicandHewitt v Benalewas not unknown within the profession; even if unknown to the solicitors having conduct of the matter because he was at that time out of the jurisdiction. 8 This is something that certainly before the entry for trial ought to and should have been raised. The District Court Rules provide that before a pre-trial conference the pleadings are to be review and I think that is the time that all this issue could have been raised. But certainly in the context of the notoriety of Hewitt v Benale this amendment ought to have been raised much earlier. 9 The plaintiff has demonstrated some prejudice in his affidavit but I am of the opinion that the prejudice is in reality no different now than if the application had been brought at an earlier time. However, I recognise that whilst pleading has now been turned on its head, costs are an appropriate panacea to the plaintiff. In my opinion the appropriate order for costs would be costs to be paid on and indemnity basis. |