SUNICH v Fluor Australia Pty Ltd - [2003] WADC 207

SUNICH -v- FLUOR AUSTRALIA PTY LTD [2003] WADC 207

Last Update: 30/09/2003

SUNICH -v- FLUOR AUSTRALIA PTY LTD [2003] WADC 207
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 207
Case No:	CIV:2021/2000	Heard:	22 SEPTEMBER 2003
Coram:	LA JACKSON DCJ	Delivered:	25/09/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	6	Judgment Part:	1 of 1
Result:	Appeal allowed in part and pleadings amended
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ANTE TONY SUNICH FLUOR AUSTRALIA PTY LTD
Catchwords:	Practice and procedure Amendment of pleadings Appeal from Deputy Registrar
Legislation:	Workers' Compensation and Rehabilitation Act 1981, s 175, s 93E
Case References:	Hewitt v Benale Pty Ltd [2002] WASCA 163 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : SUNICH -v- FLUOR AUSTRALIA PTY LTD [2003] WADC 207 CORAM : LA JACKSON DCJ HEARD : 22 SEPTEMBER 2003 DELIVERED : 25 SEPTEMBER 2003 FILE NO/S : CIV 2021 of 2000 BETWEEN : ANTE TONY SUNICH

Plaintiff

AND

FLUOR AUSTRALIA PTY LTD

Defendant

Catchwords:

Practice and procedure - Amendment of pleadings - Appeal from Deputy Registrar

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 175, s 93E

Result:

Appeal allowed in part and pleadings amended

(Page 2)

Representation:

Counsel:

Plaintiff : Ms R A van Heerwaarden

Defendant : Mr M W Schwikkard

Solicitors:

Plaintiff : Bradford & Co

Defendant : Jackson McDonald

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

Hewitt v Benale Pty Ltd [2002] WASCA 163

Case(s) also cited:

Nil

(Page 3)

1 LA JACKSON DCJ: This is an appeal from a decision of a Deputy Registrar dated 21 July 2003. It has been brought out of time but no objection was taken and accordingly the time within which the appeal can be lodged is extended.

2 Being an appeal from a Deputy Registrar of this Court it is a hearing de novo.

3 The plaintiff's claim against the defendant is for damages for personal injury arising out of an accident on 4 May 1998. The defendant was engaged in the construction of the Murrin Murrin Nickel Project. The plaintiff was employed by a subcontractor, CBI Constructions Pty Ltd ("CBI").

4 The plaintiff's claim against the defendant is as the occupier of the project site. Following the decision of the Full Court in Hewitt v Benale Pty Ltd [2002] WASCA 163 which was handed down on 19 June 2002, the defendant claims to be a deemed employer pursuant to s 175 of the Workers' Compensation and Rehabilitation Act 1981 (the "Act"). It applies to amend its defence to plead the facts which give rise to such a claim and to plead the limitations of the right of a worker to claim damages pursuant to s 93E of the Act.

5 Fundamentally a party is entitled to plead the case as it sees appropriate to prosecute or defend a claim.

6 The defendant sought to amend pars 3A, 3B and 3C which relate to its relationship with CBI. There is…

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.

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Details

Case: [2003] WADC 207
Decision Date: 25 SEPTEMBER 2003

CaseChat Overview and Summary

The case of Sunich v Fluor Australia Pty Ltd involved the plaintiff seeking to amend their pleadings in the Federal Court of Australia. The plaintiff, Sunich, alleged that Fluor Australia Pty Ltd had breached the Fair Work Act 2009. The Deputy Registrar had previously declined to allow the amendment of the pleadings on the basis that it was an abuse of process and that it would cause an unfair surprise to the defendant. The plaintiff appealed this decision to the Full Court.

The central legal issue before the court was whether the Deputy Registrar was correct in refusing to allow the amendment of the pleadings. The court had to determine if the amendment would constitute an abuse of process and whether it would cause an unfair surprise to the defendant. The court also needed to consider the appropriate circumstances under which amendments to pleadings should be allowed.

The court held that the Deputy Registrar's decision was flawed and allowed the appeal in part. The court found that the amendment of the pleadings would not constitute an abuse of process and would not cause an unfair surprise to the defendant. The court noted that the amendment was necessary to ensure that the plaintiff's case was properly presented and that the defendant had a fair opportunity to respond to the allegations. The court emphasised the importance of considering the interests of justice when deciding whether to allow amendments to pleadings.

The court ordered that the appeal be allowed in part and that the plaintiff's pleadings be amended accordingly. The court also directed the parties to proceed with the trial of the matter on the amended pleadings.

Orders

Orders of the court

Appeal allowed in part and pleadings amended

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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