Safeway Australia Pty Ltd v Parker

[2000] VSCA 115

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 7834 of 1998

SAFEWAY AUSTRALIA PTY. LTD.	Appellant
(Defendant)
v
DAVID MORE PARKER	Respondent
(Plaintiff)

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JUDGES:	WINNEKE, P. and PHILLIPS, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2000
DATE OF JUDGMENT:	16 June 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 115

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Accident compensation - Proceeding commenced for common law damages under s.135B - Application to amend to add claim under s.135A - Whether to amend pleading is to "commence proceeding" contrary to s.135A - Accident Compensation Act 1985 s.135A(2A),(2D),(2DE).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. R. Dyer	Wisewoulds
For the Respondent	Mr. A. Keogh	Stringer Clark

WINNEKE, P.:

1. I will invite Phillips, J.A. to deliver judgment in this matter.

PHILLIPS, J.A.:

1. This is an appeal by leave from an order made by a judge of the County Court on 5 November 1998, on the plaintiff's application to amend his pleading in a proceeding brought by him against his employer for personal injuries.  Leave to appeal was granted on 5 February 1999, but the respondent made a further application to the court last Friday before a single judge.  It then became convenient to adjourn that application sine die and to bring the appeal on for hearing forthwith, upon the papers that were then available.  Hence our entertaining the appeal this morning.

1. By his original statement of claim, the plaintiff was seeking damages only for non-pecuniary loss in respect of injuries suffered in the course of employment between 1989 and 1 December 1992. That was in accordance with s.135B of the Accident Compensation Act 1985. On the application to amend, the plaintiff sought to add to the existing claim in a number of ways. As the judge described it in his reasons for decision, the amendments sought to extend the period of employment in which the plaintiff suffered injury to the period from 1989 to July 1996; to include a specific incident which occurred "in or about 1993"; and to claim damages for pecuniary loss and for pain and suffering under s.135A as an alternative to the damages claimed for pain and suffering under s.135B. These amendments were allowed by the judge on 5 November 1998 and the defendant now appeals contending that, in allowing the amendments, his Honour acted in disregard of the provisions of s.135A.

1. The plaintiff argued below that the amendments were fully justified according to s.135A.  The dispute, however, centred on what are sometimes called the "gateway" provisions, sub-ss.(2A), (2D) and (2DE), which, one way or another, inhibit the commencement of proceedings.  It was common ground, apparently, before the judge that if s.135A(2DE) was relevant to the making of the amendments, then the requirements of that sub-section for the commencement of proceedings had never been satisfied.  The plaintiff contended that the procedures spelled out by sub-s.(2DE), in conjunction no doubt with sub-ss.(2A) and (2D), were not relevant where the plaintiff was seeking simply to amend an existing proceeding and not to commence a fresh proceeding.  Persuaded by this argument, the judge granted leave to amend.  The defendant contends now, as it did below, that that argument should have been rejected - and I agree.

1. In fairness to his Honour I should say that the judge, too, appears to have arrived at that conclusion, albeit after granting the plaintiff's application.  The application was made to his Honour while on a busy circuit and, after acceding to the plaintiff's application for leave to amend, the judge undertook to provide his reasons for decision later.  During the long vacation, it seems, the judge seized the opportunity to prepare those reasons but, having had occasion to reflect upon the issues, his Honour then expressed himself, in the reasons he later made available, as having now "reservations about the soundness of ... the ruling I have made".

1. The plaintiff does not now seek to support the decision below.  He advances no argument on this appeal and in my opinion, the appeal should be allowed.

1. In relation to a claim for damages which, if authorized at all, is authorized by s.135A, the concept of commencing proceedings upon which sub-ss.(2A),(2D) and (2DE) turn is wide enough, in my view, to embrace not only the commencement of a proceeding by writ or other originating process, but also the initiation of the claim by amendment of an existing statement of claim or other process.  It follows that, in my respectful view, his Honour was wrong to treat sub-s.(2DE) as not precluding leave to amend in the circumstances of this case, and it follows that the plaintiff's application to amend ought to have been refused.

1. It is sufficient for the disposition of this appeal to deal only with the meaning and effect of the expression "commence proceedings" in sub-s.(2DE) in s.135A because that was the point upon which leave to amend depended in the reasons for decision below.  There may be other reasons, however, why this application to amend ought to have been refused, reasons founded in the very convoluted provisions of ss.135, 135A and 135B; but the relationship between those three difficult sections is complex (as witness the recent decision of this Court in Rizza v. Fluor Daniel GTI[1]) and this is not the occasion on which to say any more about it.

   [1][1999] 1 VR 450

1. For the reasons I have given, I think that the appeal should be allowed, the order below for amendment set aside and in lieu it should be ordered that the plaintiff's application for leave to amend be dismissed.

1. Although we have been made aware by the parties that they have now settled their dispute subject only to the disposition of this appeal by order, the appellant has asked for costs and I see no reason why the appeal should not be allowed with costs.  The appeal was instituted before the repeal of the Appeal Costs Act 1964 on 1 April 1999 and, as the appeal has been allowed on a question of law, I think that the plaintiff, as respondent to the appeal, should have a certificate under that Act.

WINNEKE, P.:

1. I agree with the reasons that have been given by Phillips, J.A. And the orders which he proposes.

(Discussion ensued.)

1. The formal orders of the court will be that the appeal is allowed.  The order for leave to amend made in the County Court on 5 November 1998 is set aside and in lieu thereof there is substituted an order that the plaintiff's application for leave to amend be dismissed.

1. It is further ordered that the respondent pay the appellant’s costs of this appeal (including reserved costs) and we grant to the respondent a certificate pursuant to s.13 of the Appeal Costs Act 1964.

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