Tacey v Densford Pty Ltd - [2002] WADC 86

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TACEY -v- DENSFORD PTY LTD & ORS [2002] WADC 86

CORAM: JENKINS DCJ

HEARD: 20-21 MARCH 2002

DELIVERED : Delivered Extemporaneously on 21 MARCH 2002 typed from tape and edited by Trial Judge

FILE NO/S: CIV 2375 of 1999

BETWEEN: PAUL-PIERRE VINCENT TACEY
Plaintiff
AND
DENSFORD PTY LTD (ACN 009 090 073)
Defendant
STATE HOUSING COMMISSION OF WESTERN AUSTRALIA
Second Defendant/Third Third Party
QBE INSURANCE LTD
First Third Party
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Third Party
TEMWEST PTY LTD (ACN 052 154 891)
Third Defendant/First Fourth Party
DENNIS PRICE & MILLER (WA) PTY LTD (ACN 006 843 705)
Fourth Defendant/Second Fourth Party
PETER BANI
Fifth Defendant/Third Fourth Party
GEOFFREY SUTTON
Fifth Defendant/Fourth Fourth Party

Catchwords:

Appeal - Application for leave to issue fifth party notice - Turns on own facts

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:        Mr A J Klein
Defendant:        Mr J R Criddle
Second Defendant/Third Third Party       :        Mr J Jacobson
First Third Party  :        No Appearance
Second Third Party  :        Mr J G Staude
Third Defendant/First Fourth Party         :        No Appearance
Fourth Defendant/Second Fourth Party     :        Mr I R Freeman
Fifth Defendant/Third Fourth Party         :        In Person
Fifth Defendant/Fourth Fourth Party       :        Mr C Milton

Solicitors:

Plaintiff:        Stephen Browne Lawyers
Defendant:        J R Criddle
Second Defendant/Third Third Party       :        McAuliffe Williams &
Partners

First Third Party  :        Not Applicable
Second Third Party  :        J G Staude
Third Defendant/First Fourth Party         :        Not Applicable
Fourth Defendant/Second Fourth Party     :        Phillips Fox
Fifth Defendant/Third Fourth Party         :        Not Applicable
Fifth Defendant/Fourth Fourth Party       :        Talbot & Olivier

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

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Case(s) also cited:

Nil

JENKINS DCJ: I now deliver my reasons for decision in relation to the appeal and two applications that were before me yesterday, on 20 March 2002. The reasons for my decision on the appeal and on the other two applications will be delivered separately. However, it may be necessary for the parties to read them together to appreciate all of my reasoning.
In relation to the appeal, this is an appeal from the decision of the learned Registrar made in Chambers on 20 February, 2002, when he refused the second defendant's application for leave to issue a fifth party notice directed to F.A. and E.R. Skeers ("the Skeers").
The appeal is determined as a complete review de novo. I need not look for error on the part of the Registrar, but should consider the matter afresh for myself; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
The background to this appeal and to the action is as follows. The action is for damages arising out of personal injury. Mr Tacey, the plaintiff, was employed by Densford Pty Ltd ("Densford"), the defendant, as a front-end loader operator. In or around August 1999, Densford was engaged by the second defendant, third third party, the State Housing Commission of Western Australia ("State Housing") which is the appellant in these proceedings, to undertake clearing work on a property in Willagee. During the course of that work it is alleged that the wheel of the plaintiff's loader dropped into an unmarked septic tank pit. He alleges he suffered personal injury as a result of the accident.
The defendant Densford joined the appellant as well as QBE Insurance Ltd and the Insurance Commission of Western Australia as third parties; they are now the first, second third third parties. In June 2000 the plaintiff joined the appellant State Housing as a second defendant. In October 2000, the plaintiff joined Temwest Pty Ltd ("Temwest"), the third defendant, Dennis Price and Miller (WA) Pty Ltd ("Dennis Price"), the fourth defendant, and Peter Bani and Geoffrey Sutton the fifth defendants. The appellant issued fourth party proceedings against Temwest, Dennis Price, Mr Bani and Mr Sutton. Mr Bani is self‑represented and hence he is the third fourth party and Mr Sutton is the fourth fourth party.
The defendant has joined the appellant as a third third party and most, but not all of the defendants, have issued notices of contribution to all the other defendants.
Thus the litigants in this action and their roles are:
(i)Mr Tacey the plaintiff, who is the injured worker employed by Densford;
(ii)Densford, the first defendant, who is Mr Tacey's employer, contracted by the appellant;
(ii)State Housing, the appellant, who is the second defendant and third third party, commissioned Densford to undertake works on the Willagee site. It is alleged that the appellant had a duty to remove the septic tank which was the subject of the plaintiff's alleged accident.
(iv)Temwest, the third defendant and first fourth party, who is the project manager for State Housing, the appellant. It is alleged that they were supposed to survey the site and identify problems including the subterranean structures, one of those being the septic tank;
(v)Dennis Price, the fourth defendant and second fourth party, who are the engineers and superintendents of the Willagee site. It is alleged that they also should have identified potential problems including the septic tank;
(vi)Mr Bani and Mr Sutton, the fifth defendants and third and fourth fourth party, the demolition contractors. It is alleged that they had a duty to remove the septic tank.
In addition, as I have indicated, there is QBE Insurance Ltd, the first third party, who is Densford's insurer under an employers indemnity policy, and the Insurance Commission of Western Australia, the second third party because a motor vehicle is involved.
The appellant wishes to join the Skeers on the basis that in 1979, that is 20 years prior to the accident, the Skeers had a contract with the appellant to fill in the septic tank as part of its contract to convert the premises in Willagee to the main sewerage. The appellant alleges that the Skeers were a major contributor to the accident because of its failure to fulfil its duties under that contract.
After I have delivered my reasons for my decision on the appeal I will deal with two applications by the fourth defendant and the second fourth party to amend its pleadings and also an application by the fifth defendant, Mr Bani, to amend his defence to allege that they were entitled to rely upon the second defendant, that is the appellant, State Housing, properly inspecting the work that the Skeers were supposed to have done so as so ensure it was done. I have taken my reasons for my decisions in those two applications and my decision in those two applications into account in determining this appeal.
I am told that this action is now ready for trial and probably would have been given trial dates by now if it was not for the second defendant's application and appeal. I am told that there are no outstanding interlocutory applications.
I have in addition to the material that was filed prior to yesterday received since the hearing of the appeal some additional material from the appellant, that being minutes of proposed fifth party notice, one in tort only, one in contract and tort, an affidavit of Jonathon Jacobson sworn the 20th day of March and additional submissions for appeal. I have taken those documents into account in addition to those which were filed prior to the hearing.
The appellant's submissions are that the delay in making this application for leave to issue a fifth party notice to the Skeers is not its fault in that it only recently found out about the 1979 contract between itself and the proposed fifth party when it was doing a further search of the state archives for discoverable material.
Secondly, it says that the application for leave is not frivolous. It says the proposed fifth party was specifically contracted to do the work which the plaintiff says was not done and resulted in his injuries. Third, the appellant says that the application is not opposed by any other party other than the plaintiff. Fourth, it says the joining of the Skeers will not muddy the waters but rather it will resolve a number of issues between the parties. The Skeers, it is said, are central to the resolution of the cause of the plaintiff's alleged injury. Fifth, the appellant says that if the Skeers are not joined it is likely that a number of parties to the action, if found liable, will issue separate proceedings against the Skeers thus wasting the Court's time and resources, and sixth, it says that if the Skeers are not joined, the Court will not have all the relevant issues before it.
The respondent's submissions, that is the plaintiff's submissions, are that the parties are ready to go to trial and the issuing of a fifth party notice will significantly delay the trial, probably by about 12 months. That estimation is based on the previous delay due to the late joining of other parties. The plaintiff says that time would have to be allowed for pleadings, discovery and other interlocutory matters and these can be estimated to take that period of time, ie 12 months.
Second, the plaintiff says that the delay in applying to join the fifth party is the appellant's fault and that is a matter I should take into account. Third, the plaintiff says that there are already a large number of factual and legal issues between the parties and to join another party would add to those. Fourth, the plaintiff says it will have to meet a new case if the fifth party is added and fifthly, and perhaps the most importantly, the plaintiff says that there is potential prejudice to him by delay because he can only be awarded common law damages under the Workers' Compensation and Rehabilitation Act 1981 if it is established that his future pecuniary loss exceeds approximately $126,000.
The plaintiff says that this figure may be in play in this matter, a submission that was not disputed by the appellant. The plaintiff says each week the plaintiff's future pecuniary loss decreases and there is also a yearly increase in the threshold. Thus the plaintiff says that a delay of 12 months in this matter could result in the plaintiff being denied damages at all.
The legal principles that are applicable to this appeal can briefly be stated.
It is said at law that the advantages of third party, or in this case fifth party proceedings, are that if party directions are given they enable the liability of the other party to be determined at the same time as the liability of the defendant. Thus the other party is bound by the decision in the case. There is not the risk of further proceedings resulting in a different decision, costs are usually saved because issues do not have to be litigated twice and the enforcement of all related orders can take place at the one time. Therefore the defendant is not prejudiced by any delay between the plaintiff enforcing a judgment against them and then subsequently having to wait to obtain judgment against the third party.
At law it is said the disadvantage of third party proceedings are that they are extremely disruptive and usually result in significant delays if third party orders are made.
There is no benefit in me granting leave to issue the fifth party notice if my view is such that such directions ought not to be made.
In weighing up these advantages and disadvantages, prejudice to the defendant will not predominate over prejudice to the plaintiff or to the public interest in the timely disposition of cases. This is particularly so where the application is made belatedly.
Applying these principles to the facts, I have to balance the issues for and against the application. Having done that, I have decided that I should not grant the application. In doing so I have taken into account all the above matters, and in particular, the existing complexity of these proceedings. This is primarily as a result of the number of defendants and other parties already joined.
The fact that these defendants and other parties have already been joined will result in a practically difficult trial to run. There will many counsel, there will be many factual issues, there will many legal issues. To add another one, that is, to add another party, would be to invite chaos. Even with the number of parties already involved there will, as I have said, be many counsel to examine and cross-examine witnesses and to make submissions. Thus the length of trial is already increased far beyond what would usually be expected in cases of this kind.
To add another would be to elongate it further. Thus the principle that time would actually be saved by the issuing of fifth party notice is doubtful.
Secondly, I have taken into account that to add another party would be to add significantly to the issues, thus also adding to the complexity of the trial, and in this respect I have noted that the appellant wishes not only to issue a fifth party notice in tort, alleging various particulars of negligence against the proposed fifth party, but also wishes to issue, if I would allow it, a notice in contract. Again, adding even further issues to the trial.
I have also taken into account the issue of delay. I understand that the appellant says the delay would not be great, whereas the plaintiff says it would in the order of 12 months. I think, in fact, the delay would be somewhere between those two, I would think in the region of 6 to 9 months. That means that the case would have to wait until early next year for trial dates.
I have also taken into account the balance of prejudice as between the parties. In my view the greater prejudice is to the plaintiff, who may have his claim extinguished by the delay. If the application is refused, the appellant will still have his cause of action against the proposed fifth party, if he is found liable to the plaintiff, he will just have to prosecute it separately.
I have also taken into account the issue of separate enforcement. In my view this issue is not relevant to this application and to this appeal, as the delay between paying a judgment to the plaintiff, and any judgment that the appellant obtained against the proposed fifth party, would be unlikely to cause financial hardship to the appellant due to its nature as a government entity.
I have also taken into account the cause of the delay in making the application. The cause of the delay, I believe, does rest with the appellant. However, I concede that given the length of time between 1979 and the commencement of the action, the delay is understandable. That is, I acknowledge that it is not surprising that the appellant had forgotten, as it were, that it had such a contract with the Skeers. I regard this factor as equally balanced. More to the point is the affect of the delay on the plaintiff and the public interest in the timely and efficient disposal of litigation.
In relation to specific arguments raised by the appellant, I say as follows.
In relation to the argument that the joining of the Skeers will not muddy the waters but rather it will resolve a number of issues between the parties, and the fact the appellant says that the issue with regard to the Skeers is central to the resolution of the cause of the plaintiff's alleged injury, I find that to the extent that the Skeers are relevant to the issues and the litigation as pleaded, including those amendments that I intend to allow today, all the issues can be determined properly between the parties.
It is a different thing to say that the Skeers should be added as a party, that is, as a fifth party to these proceedings, and that fifth party directions, including pleadings and interlocutory issues should be made and their liability as between themselves and the appellant, should be determined in these proceedings. It is those latter issues which, in my view, mean that the appeal should not be allowed. Nonetheless, the relevant issues as between the parties already joined will be able to be properly resolved.
Secondly, the appellant submits that if the Skeers are not joined it is likely that a number of parties to the action, if found liable, will issue separate proceedings against the Skeers, thus wasting the Court's time and resources. In my opinion that hypothetical situation is better encountered, when it does occur, which is by no means certain, rather than undoubtedly engaging the Court's and the parties times in adding a further party to this litigation.
I will next deal with the appellant's argument that if the Skeers are not joined the Court will not have all the relevant issues before it. For the reasons already given, I believe that the Court will have the relevant issues between the parties before it. The relevant issues are those that are pleaded between the parties to this action, as it is, and those issues will be able to be properly determined by the Judge. Any further issues between the appellant and the Skeers, should they arise, will be able to be dealt with in separate proceedings.
For these reasons the appeal will be dismissed.