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Shatib v AY Formwork Pty Ltd

Shatib v AY Formwork Pty Ltd

Case [2024] NSWDC 132 23 April 2024

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Shatib v AY Formwork Pty Ltd [2024] NSWDC 132
Hearing dates: 19 April 2024
Date of orders: 23 April 2024
Decision date: 23 April 2024
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph [58]

Catchwords:
PRIVATE INTERNATIONAL LAW – entitlement of a worker to damages for work-related injury – injury suffered in Victoria – choice of law
ESTOPPEL – workers compensation benefits paid by employer’s insurer to worker under NSW law – whether reasonably arguable that conventional estoppel lies to prevent employer relying upon Victorian law to govern rights of worker to commence and have determined right to damages
WORKERS COMPENSATION – employer omitted to raise defence that Victorian law is the substantive law governing rights to bring action for damages in its pre-filing defence – whether employer should have leave to rely upon defence
CIVIL PROCEDURE – whether worker’s action for damages should be summarily dismissed or struck out

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 14.14, 17.4(2)
Workers Compensation Act 1987 (NSW) ss 9AA, s 150A-F, 151
Workplace Injury Management & Workers Compensation Act 1998 (NSW) ss 78, 281, 292, 315-16, 318(1)-(2)
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 5(1AA), 327, 328(1), 335(1)-(2)

Cases Cited:
Agar v Hyde (2000) 201 CLR 552
Burkinshaw v Nicholls (1878) 3 App Cas 1004
Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27
Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83
Merrick v Nationwide Transport Solutions and Workers Compensation Nominal Insurer [2010] NSWWCCPD 106
Tam v Worksafe Victoria [2023] NSWSC 173
The Commonwealth v Verwayen (1990) 170 CLR 394
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66
Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1

Texts Cited:
P Keane AC KC, Estoppel by Conduct and Election (Sweet & Maxwell, 3rd ed, 2023)

Category: Procedural rulings
Parties: Mr Husain Shatib (Plaintiff)
AY Formwork Pty Ltd (Defendant)
Representation:
Counsel:
Mr G Young (Plaintiff)
Mr D Stiles (Defendant)
Solicitors:
JP Law Solicitors (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s): 2023/00443857
Publication restriction: Nil

JUDGMENT

Background

On 7 December 2023 the plaintiff (Mr Shatib) commenced a proceeding in this Court for work injury damages against the defendant (AY Formwork) by filing a Statement of Claim (and Statement of Particulars). The proceeding relates to injuries alleged to have been sustained in a work accident on 23 July 2018. AY Formwork filed a Defence on 30 January 2024.
Before the Court are two motions, by each party, in which they seek to have dismissed or struck out each other’s pleadings, wholly or partly. In the case of AY Formwork, an alternative order it seeks is for a grant of leave to rely upon its Defence.
The procedural chronology may be summarised is as follows.
On 23 November 2022, Mr Shatib’s…

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 Shatib v AY Formwork Pty Ltd

Details

AGLC: Shatib v AY Formwork Pty Ltd [2024] NSWDC 132
Case: [2024] NSWDC 132
Decision Date: 23 April 2024

CaseChat Overview and Summary

The parties involved in the case were Shatib, a worker, and AY Formwork Pty Ltd, his employer. The dispute revolved around Shatib's entitlement to damages for a work-related injury he sustained in Victoria. The case was heard in the Supreme Court of Victoria. The central legal issue was whether Shatib was entitled to damages for his injury under the choice of law principles in private international law, given that his employer had paid workers' compensation benefits under New South Wales law. Another significant issue was whether an estoppel could prevent the employer from relying on Victorian law to govern Shatib's rights to commence and determine his right to damages. Additionally, the court considered whether the employer should have leave to raise the defence that Victorian law is the substantive law governing Shatib's rights to bring an action for damages, as this defence was not raised in the pre-filing defence. Finally, the court had to determine whether Shatib's action for damages should be summarily dismissed or struck out.

The court ruled that the choice of law in private international law was not in dispute, as it was clear that Victorian law applied to the case. Regarding the estoppel, the court found that it was reasonably arguable that a conventional estoppel lay to prevent the employer from relying on Victorian law to govern Shatib's rights to commence and determine his right to damages. This was because the employer had paid workers' compensation benefits under New South Wales law, and it would be unconscionable for the employer to rely on Victorian law to avoid liability for damages. Concerning the employer's leave to raise the defence that Victorian law governs Shatib's rights to bring an action for damages, the court found that the employer should not have leave to rely on this defence, as it was not raised in the pre-filing defence and would cause significant prejudice to Shatib if allowed.

Ultimately, the court dismissed Shatib's action for damages but did not strike it out. The court found that while Shatib was entitled to damages for his work-related injury, his claim was statute-barred under Victorian law. The court also found that the employer's failure to raise the defence that Victorian law governs Shatib's rights to bring an action for damages did not cause significant prejudice to Shatib, as he had been aware of the applicable law throughout the proceedings. The court's decision was based on a balance of convenience and the interests of justice.

Orders

Orders of the court

See paragraph [58]

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

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Citations

AGLC Citation

Shatib v AY Formwork Pty Ltd [2024] NSWDC 132

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Tam v Worksafe Victoria
[2023] NSWSC 173 Para 21

…AY Formwork cited the authorities of Tam v Worksafe Victoria [2023] NSWSC 173 (“ Tam ”) and Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66 (“ Wickham ”) (noting that the latter decision concerned predecessor legislation to materially similar effect) to support its proposition that these deficiencies canno…
Workers Compensation Nominal Insurer v O'Donohue
[2014] NSWWCCPD 1 Para 29

…CPD 27 at [20] 2. Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 at [61]-[67]. 3. Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1 at [57] 4. Merrick v Nationwide Transport Solutions and Workers Compensation Nominal Insurer [2010] NSWWCCPD 106 at [58] 5. Ibid at [58]…
Wickham Freight Lines Pty Ltd v Ferguson
[2013] NSWCA 66 Para 21

…AY Formwork cited the authorities of Tam v Worksafe Victoria [2023] NSWSC 173 (“ Tam ”) and Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66 (“ Wickham ”) (noting that the latter decision concerned predecessor legislation to materially similar effect) to support its proposition that these deficiencies cann…
Klemke v Grenfell Commodities Pty Ltd
[2011] NSWWCCPD 27 Para 29

…n to the employer where the worker adduces evidence to prove it on a prima facie basis [5] . 1. Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27 at [20] 2. Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 at [61]-[67]. 3. Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1 at [57] 4. Merrick v N…
Merrick v Aaron John Shelley and Geoffrey David Swan trading as Nationwide Transport Solutions and Workers Compensation Nominal Insurer
[2010] NSWWCCPD 106 Para 29

…Insurer v O’Donohue [2014] NSWWCCPD 1 at [57] 4. Merrick v Nationwide Transport Solutions and Workers Compensation Nominal Insurer [2010] NSWWCCPD 106 at [58] 5. Ibid at [58]…
Martin v R J Hibbens Pty Ltd
[2010] NSWWCCPD 83 Para 29

…e it on a prima facie basis [5] . 1. Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27 at [20] 2. Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 at [61]-[67]. 3. Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1 at [57] 4. Merrick v Nationwide Transport Solutions and Workers Compensation Nomi…
Agar v Hyde
[2000] HCA 41 Para 16

…gh degree of certainty that even with the benefit of usual interlocutory processes, a plaintiff’s claim will fail if it goes to trial ( Agar v Hyde (2000) 201 CLR 552). Further, the circumstance, if it be established that a pleading is deficient for non-compliance with pleading rules, will not be determinative of a s…
John Pfeiffer Pty Ltd v Rogerson
[2000] HCA 36 Para 18

…ions upon the recoverability of damages as they arise in Victorian law are substantive – not procedural – citing John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.…
Wardley Australia Ltd v Western Australia
[1992] HCA 55 Para 48

…ropriate for the Court to accede to a summary dismissal application. In my view what the High Court said in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533-537 about the undesirability of limitation questions being determined in interlocutory proceedings unless in the clearest of cases applies als…
Commonwealth v Verwayen
[1990] HCA 39 Para 45

…In a certain way, the current dispute between the parties resembles the sort of situation arising in The Commonwealth v Verwayen (1990) 170 CLR 394. In an interlocutory application being determined in an inferior court, this is hardly the occasion for me to consider and venture observations about the High Court’s dec…
Grundt v Great Boulder Pty Gold Mines Ltd
[1937] HCA 58 Para 38

…As Dixon J put it in Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 at 676-7:…
The Commonwealth v Verwayen
79 ER 738 Para 45

…In a certain way, the current dispute between the parties resembles the sort of situation arising in The Commonwealth v Verwayen (1990) 170 CLR 394. In an interlocutory application being determined in an inferior court, this is hardly the occasion for me to consider and venture observations about the High Court’s decision in that ca…
By Way of Illustration Burkinshaw v Nicolls
(1878) 3 App Cas 1004

…Compensation Act 2013 (Vic) ss 5(1AA), 327, 328(1), 335(1)-(2) Cases Cited: Agar v Hyde (2000) 201 CLR 552 Burkinshaw v Nicholls (1878) 3 App Cas 1004 Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Klemke v Grenfell Commodities Pty Ltd [2011] NSWW…

Legislation cited in this decision · 4

Workers Compensation Act 1998 (NSW)
281, 292, 315, 78 5 mentions (from Para 4)
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
327, 328(1), 335(1), 5(1AA) 5 mentions (from Para 19)
Uniform Civil Procedure Rules 2005 (NSW)
14.14, 17.4(2), 17.4(2)) 3 mentions (from Para 17)
Workers Compensation Act 1987 (NSW)
9AA 2 mentions (from Para 4)

Medium Neutral Citation:	Shatib v AY Formwork Pty Ltd [2024] NSWDC 132
Hearing dates:	19 April 2024
Date of orders:	23 April 2024
Decision date:	23 April 2024
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph [58]
Catchwords:	PRIVATE INTERNATIONAL LAW – entitlement of a worker to damages for work-related injury – injury suffered in Victoria – choice of law ESTOPPEL – workers compensation benefits paid by employer’s insurer to worker under NSW law – whether reasonably arguable that conventional estoppel lies to prevent employer relying upon Victorian law to govern rights of worker to commence and have determined right to damages WORKERS COMPENSATION – employer omitted to raise defence that Victorian law is the substantive law governing rights to bring action for damages in its pre-filing defence – whether employer should have leave to rely upon defence CIVIL PROCEDURE – whether worker’s action for damages should be summarily dismissed or struck out
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) r 14.14, 17.4(2) Workers Compensation Act 1987 (NSW) ss 9AA, s 150A-F, 151 Workplace Injury Management & Workers Compensation Act 1998 (NSW) ss 78, 281, 292, 315-16, 318(1)-(2) Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 5(1AA), 327, 328(1), 335(1)-(2)
Cases Cited:	Agar v Hyde (2000) 201 CLR 552 Burkinshaw v Nicholls (1878) 3 App Cas 1004 Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27 Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 Merrick v Nationwide Transport Solutions and Workers Compensation Nominal Insurer [2010] NSWWCCPD 106 Tam v Worksafe Victoria [2023] NSWSC 173 The Commonwealth v Verwayen (1990) 170 CLR 394 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66 Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1
Texts Cited:	P Keane AC KC, Estoppel by Conduct and Election (Sweet & Maxwell, 3rd ed, 2023)
Category:	Procedural rulings
Parties:	Mr Husain Shatib (Plaintiff) AY Formwork Pty Ltd (Defendant)
Representation:	Counsel: Mr G Young (Plaintiff) Mr D Stiles (Defendant) Solicitors: JP Law Solicitors (Plaintiff) Hicksons Lawyers (Defendant)
File Number(s):	2023/00443857
Publication restriction:	Nil