| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA 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
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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
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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 no objection to such amendments. 7 In par 11AA the defendant seeks to plead: "The defendants says further that pursuant to the contract the first third party was engaged by the defendant as a subcontractor to install site fabricated tanks on the relevant premises ('the installation of tanks'). The defendant will refer to the contract at trial for its full terms and effect." 8 It is the second sentence of that paragraph which is objected to by the plaintiff. It says it is far too wide and with a contract that runs into several hundred pages it is of no assistance to the plaintiff to identify the validity of the defendant's defence. Whilst I have some sympathy for the plaintiff, it seems to me that the answer to the plaintiff's difficulty is to seek particulars. A pleading in the form set out by the defendant is quite common. If the other side requires some particularity there is nothing
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unreasonable about it seeking such particulars. Particulars would overcome any difficulty the plaintiff might have. 9 The defendant also seeks to add par 11AB which starts: "The installation of tanks was directly a part or process in the trade or business of the defendant … ." 10 That phrase comes from s 175 and is appropriately pleaded. Then follows six initialled paragraphs set out as particulars. The plaintiff objects saying these ought to be substantive allegations. I disagree. The fact to be pleaded is that fact which brings the defendant within s 175. I would have thought the way in which the defendant has set out the pleading is entirely appropriate. The particulars are particulars from which the conclusion that the work was directly a part or process in the trade or business of the defendant could be found. 11 The defendant also seeks to add additional par 11AC which again paraphrases a provision of s 175 and is also appropriate. 12 The defendant also seeks to amend par 11B to plead non-compliance with s 93E. Section 93E places limitations on a court in awarding damages to an employee. It requires either agreement or a determination of a degree of disability as a condition precedent to the ability of a court to award damages. As I understand it, the plaintiff has not taken any steps to obtain either agreement or a determination. The plaintiff has had many months notice of the way in which the defendant was proposing to plead its defence but still has taken no steps. 13 The defendant seeks a stay of the action until either there is agreement or a determination of the plaintiff's degree of permanent disability. In cases in this Court in which employees are suing employers prior to the obtaining of such a determination it is common to order a stay until the determination has been made. I think that course eminently sensible and one which should be followed in the usual case. This case, however, I think is a little unusual because it is not until the amendments to the pleadings which this decision makes that the plaintiff has actually been facing a plea denying liability on the grounds of the limitations imposed by the Act. It seems to me that if the plaintiff does nothing to obtain agreement or a determination then his claim should be stayed until such a determination has been made. However, until there was a live issue on the subject there was no imperative upon the plaintiff to have agreement or a determination.
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14 The plaintiff should promptly proceed to seek agreement or a determination. If he does not then the defendant ought to be entitled to the stay because it is unreasonable that the defendant should be put to the expense of him incurring further liability for legal fees which, if the plaintiff fails to obtain agreement or a determination may simply be money thrown away.
15 In the circumstances it seems to me the proper way of dealing with the matter is not at this stage to make any order for a stay but to give liberty to the defendant to apply for a stay unless the plaintiff forthwith puts in train the process by which agreement or a determination can be effected. I consider the plaintiff should be required to move promptly. I therefore do not make an order for a stay but would give liberty to the defendant to apply for a stay any time after 30 days from the date of this order. I do, however, make it clear that in my opinion the stay should not be granted if the plaintiff is doing all he can to obtain the determination. 16 If as the plaintiff's counsel advised the process of obtaining a determination is a slow one then the plaintiff (and presumably the defendant) is likely to be prejudiced because of the delay in the matter proceeding to trial. It is therefore undesirable that the ordinary interlocutory proceedings of the Court should have to wait until after a determination has been made. There is no reason why both proceedings required for a determination and the interlocutory proceedings should not occur at the same time. 17 The defendant also applied for the issues arising in relation to the Act to be tried as a preliminary issue. Counsel for the plaintiff argued that issue should be delayed until the close of the pleadings and any discovery or interrogatories. I agree with that proposition. To this extent I agree with the decision of the Deputy Registrar. 18 After the filing of a defence the defendant issued third party notices against CBI and another. Those notices have been discontinued. I note in the proposed amended defence there is reference to CBI as the first third party. Clearly where it appears that should not and CBI should be named. 19 I would accordingly make the following orders:
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3. The defendant have leave to re-amend its amended defence in accordance with the minute of proposed further re-amended defence dated 29 April 2003 as further amended by deleting "the first third party" and substituting by name CBI Constructions Pty Ltd, or CBI, where appearing. 4. Service of the re-amended defence be dispensed with. 5. The defendant be at liberty to apply to stay the plaintiff's action after 30 days from the date of this order. 6. The application to try any question as a preliminary issue is adjourned sine die. 20 I will hear the parties as to the costs of the applications and the appeal. |