Van Heemst v Sestich

[2007] WASCA 46

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   VAN HEEMST -v- SESTICH [2007] WASCA 46

CORAM:   BUSS JA

HEARD:   23 FEBRUARY 2007

DELIVERED          :   23 FEBRUARY 2007

FILE NO/S:   CACV 38 of 2006

BETWEEN:   TED VAN HEEMST

Appellant

AND

MARK SESTICH
Respondent
 

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MULLER DCJ

Citation  :SESTICH -v- VAN HEEMST [2006] WADC 23

File No  :CIV 1066 of 2003

Catchwords:

Practice and procedure - Appeal - Joinder of parties to appeal - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr P B O'Neal

Respondent:     Mr B G Bradley

Intervener:     Mr J P Wilson

Solicitors:

Appellant:     Downings Legal

Respondent:     Bradley & Bayly

Intervener:     Mullins Handcock

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

Sestich v Van Heemst [2006] WADC 23

1. BUSS JA:  The parties to this appeal and cross‑appeal comprise Ted Van Heemst as appellant, and Mark Sestich as respondent. 

2. The respondent was the plaintiff, and the appellant was the defendant, in proceedings in the District Court:  Sestich v Van Heemst [2006] WADC 23. The respondent claimed damages from the appellant for injuries suffered by the respondent in an accident which occurred, through the alleged negligence of the appellant, while the respondent was riding a horse on a training track owned by the appellant. After a trial before Muller DCJ, his Honour entered judgment for the respondent. The award of damages was $494,222.

3. The appellant has appealed and the respondent has cross‑appealed to this Court against the judgment of the learned trial Judge.

4. Before me today is an application by Insurance Australia Ltd trading as CGU Workers Compensation for leave to be joined as a party to this appeal and cross‑appeal.  The appellant and the respondent oppose the application.  Insurance Australia Ltd was not a party to the District Court proceedings.  The application for joinder is supported by an affidavit of David Wayne Williams sworn on 28 December 2006.  Mr Williams is a partner of the law firm, Mullins Handcock, which acts for Insurance Australia Ltd.  In his affidavit, Mr Williams deposes, relevantly, that:

   (1)At all material times the appellant held a workers' compensation/employers' indemnity policy with Insurance Australia Ltd.

   (2)As a result of the accident in which the respondent suffered his injuries, the respondent lodged a claim for workers' compensation, seeking weekly payments of compensation and payment of statutory allowances in respect of his injuries in accordance with the Workers' Compensation and Injury Management Act 1981 (WA).

   (3)Insurance Australia Ltd accepted liability, under the policy it issued to the appellant, for the workers' compensation claim lodged by the respondent, and made payments to the respondent under the Act in the total amount of $180,185.33. 

   (4)The appellant's policy with Insurance Australia Ltd did not respond to the respondent's claim for common law damages which was the subject of the District Court proceedings and is now the subject of this appeal and cross‑appeal.

   (5)The respondent sought, and was granted, indemnity in respect of the common law damages claim by its then public liability insurer, Liberty International Underwriters ("Liberty").

   (6)There is a dispute as to whether Insurance Australia Ltd has any right to recover the workers' compensation payments it has made. 

   (7)Insurance Australia Ltd seeks to be joined as a party to this appeal and cross‑appeal for the purpose of litigating, and having this Court determine, in these proceedings, whether Insurance Australia Ltd is entitled, by subrogation to its insured's rights, to recover from Liberty the amount of the workers' compensation payments it has made.

5. I will assume, favourably to Insurance Australia Ltd, that I have power, in these circumstances, to order that Insurance Australia Ltd be joined as a party to this appeal and cross‑appeal. 

6. In my opinion, Insurance Australia Ltd should not be joined as a party.  I exercise my discretion against making an order for joinder for these reasons.  First, the matters which Insurance Australia Ltd seeks to litigate were not in issue in the District Court proceedings.  Neither Insurance Australia Ltd nor Liberty was a party to those proceedings.  Secondly, the matters which Insurance Australia Ltd seeks to litigate are materially different from the issues of law and fact raised by the appellant and the respondent in this appeal and cross‑appeal.  Thirdly, this Court is an intermediate court of appeal, and the matters which Insurance Australia Ltd seeks to litigate should be heard and determined by proceedings in the original jurisdiction of a court of competent jurisdiction.  Fourthly, Liberty is neither a party nor a proposed party, at this stage, to this appeal and cross‑appeal, and the matters which Insurance Australia Ltd seeks to litigate would plainly affect its interests and require that it be joined.  The appellant's appeal notice was filed on 12 April 2006.  If Insurance Australia Ltd and Liberty were to be joined, the hearing of this appeal and cross‑appeal would be delayed significantly.  Such an outcome is contrary to the legitimate interests and reasonable expectations of the appellant and the respondent. 

7. The application by Insurance Australia Ltd should be dismissed.