Thornton v Newcrest Mining Ltd

[2009] WADC 131

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   THORNTON -v- NEWCREST MINING LTD & ORS [2009] WADC 131

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   25 AUGUST 2009

DELIVERED          :   28 AUGUST 2009

FILE NO/S:   CIV 1475 of 2008

BETWEEN:   MICHAEL EMERY THORNTON

Plaintiff

AND

NEWCREST MINING LTD
First Defendant

DR EDDY BAJROVIC
Second Defendant

DELTA HEALTH PTY LTD
Third Defendant

GEMINI MEDICAL SERVICES PTY LTD
Fourth Defendant

Catchwords:

Practice and Procedure - Summary Judgment - Separate actions against separate defendants for the same injury - Settlement on one claim - Effect on the other claims

Legislation:

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Result:

Plaintiff's action dismissed

Representation:

Counsel:

Plaintiff:     Mr L Gandini

First Defendant              :     Ms M K Joyce

Second Defendant         :     No appearance

Third Defendant            :     No appearance

Fourth Defendant           :     No appearance

Solicitors:

Plaintiff:     Chapmans

First Defendant              :     DLA Phillips Fox

Second Defendant         :     Not applicable

Third Defendant            :     Not applicable

Fourth Defendant           :     Not applicable

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

Baxter v Obacelo Pty Ltd & Anor (2001) 205 CLR 635

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

1. DEPUTY REGISTRAR HEWITT:  In this action the plaintiff sues the first defendant as the occupier of a mine site at which he worked and at which he alleges was injured due to the breach of the statutory duty of the first defendant or alternatively the negligence of that defendant.  The first defendant by chamber summons filed 11 May 2009 sought leave to apply for summary judgment and an order that the statement of claim be struck out and the action against the first defendant dismissed.  The basis of that application rested on the fact that the plaintiff had by District Court action number 1037/2007 commenced proceedings against his employer for the same injuries and those proceedings had been settled by a judgment for $250,000 for damages exclusive of weekly payments and $11,804 in legal costs and disbursements.  It was alleged by the first defendant and not disputed by the plaintiff that payment of that judgment had been made by the defendant to that action or its insurer. 

2. The application therefore relied upon the provisions of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947. In particular the application relied on s 7(1)(a) and (b) of that Act which are couched in the following terms:

   "…

   (a)   judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damages;

   (b)   if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the wife, husband, parent or child of the person, against tortfeasors liable in respect of the damages (whether as joint tortfeasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given: and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the Court is of opinion that there was reasonable ground for bringing the action."

3. If it was therefore argued on the basis of that legislative provision that since the provisions of s 7(1)(b) of the Act prevented the plaintiff from obtaining any more by way of damages than the amount of the original judgment, and the original judgment having been paid in full, the plaintiff was not able to recover any further damages from the first defendant to the present action, he being precluded from double recovery for the same injury.  Against that proposition the plaintiff relied on the case of Baxter v Obacelo Pty Ltd & Anor (2001) 205 CLR 635. In that case a plaintiff commenced an action against a number of defendants and during the course of the proceedings settled his claim against one of those defendants. In doing so it was made clear that it was not contemplated by the parties to the settlement that the amount of the judgment was full satisfaction for the claim and the plaintiff intended to pursue the other defendants to obtain the full measure of his damages.

4. On the application of the remaining defendants the Court held that the settlement was no bar to the plaintiff continuing to pursue them for the balance of the monies said to have been suffered by way of damage by virtue of their negligence.  The Court held that it was necessary for the plaintiff to bring to account the monies received by virtue of the settlement but that he was not precluded from pursuing the remaining defendants for the balance of his loss. 

5. These matters were first argued before me on 4 August 2008 and I adjourned the matter for the parties to give consideration to the argument advanced by the plaintiff.  I allowed seven days with in which the defendant could file written submissions and allowed the plaintiff a further seven days within which to respond.  Notwithstanding the opportunity to do so being granted the plaintiff did not respond to the written submissions which were filed by the defendant pursuant to my order nor did his representative attend the adjourned hearing when I made orders dismissing the claim. 

6. It appears to me that this is a simple matter.  The case relied upon by the plaintiff simply has no application to the circumstances of the present case.  The decision upon which the plaintiff relies was reached precisely because the defendants were joined in a single action.  The Court held that the relevant New South Wales law (which in substance is identical to that in Western Australia) did not apply since they were not separate actions and that led the way to the Court reaching its decision in the matter.  In the present case there are separate actions and the statute clearly does apply.

7. Evidence has been given by the plaintiff that he did not intend his settlement with his employer to be in full satisfaction of his claim to damages.  Even if that were to be the case the decision in Baxter has no application to these facts and offers no protection to the plaintiff. 

8. This being the summary judgment application it is well established that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.

9. In my view the facts in this case satisfies that test and I ordered that the plaintiff's action against the first defendant be dismissed with costs, adjourned the first defendant's claim for costs on an indemnity basis for further argument, and ordered the time for an appeal extended until 10 days after the publication of these reasons.