Victorian WorkCover Authority v Baldwin (No 2) - [2022] VSC 208

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2021 00763

VICTORIAN WORKCOVER AUTHORITY trading as WorkSafe Victoria (ABN 90 296 467 627)	Plaintiff
v
CHRISTOPHER JAMES BALDWIN	First Defendant
-and-
DANBOL PTY LTD (ACN 147 432 399)	Second Defendant
-and-
DELACOR PTY LTD (ACN 615 956 341)	Third Party

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2022
DATE OF JUDGMENT:	29 April 2022
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Baldwin & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 208

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PRACTICE AND PROCEDURE – Summary judgment application by defendants – Civil Procedure Act 2010 (Vic), ss 62 and 63 – Plaintiff seeking to recover costs expended on industrial site clean-up – Whether real prospects of success – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E Bennett SC with Mr A Purton and Ms E Brumby	Minter Ellison
For the Defendants	Mr C Young QC with Mr T Jeffrie	Davis Advisory Pty Ltd

HIS HONOUR:

In this proceeding, the Victorian WorkCover Authority (‘WorkSafe’) seeks to recover the costs that it alleges it has expended in cleaning up an industrial site that was blighted by a large industrial fire. It relies on a statutory cause of action conferred by s 17K(6) of the Dangerous Goods Act1985 (‘the Act’).[1]
[1]Further background is set out in the reasons of Sloss J in Victorian WorkCover Authority v Baldwin & Ors [2021] VSC 667.

The defendants have applied for summary judgment on the basis that their defences are so obvious and compelling as to render a trial unnecessary. I would refuse the application. My reasons follow.

The statutory provisions

WorkSafe was established by s 18 of the Accident Compensation Act1985, is a body corporate, and trades under the name WorkSafe Victoria. WorkSafe is, among other things, the relevant regulator for the purposes of the Act.

The Act is concerned with ‘dangerous goods’ which has the same meaning as it has in the Australian Code for the Transport of Dangerous Goods by Road and Rail (‘the Code’).[2] The Code divides dangerous goods into various classes, including gases, flammable substances,[3] toxic substances, and infectious substances.
[2]The Code (seventh edition or subsequent editions) as in force from time to time.
[3]Divided into flammable liquids, flammable solids, and substances liable to spontaneous combust.

Part II of the Act is headed ’Inspectors and enforcement’. Section 11 of the Act empowers WorkSafe to appoint inspectors and the Act confers a number of powers on inspectors. All of the powers conferred on an inspector may be exercised by WorkSafe[4] and an inspector is subject to the directions of WorkSafe.[5] The powers include the power to enter premises (other than places used only for residential purposes);[6] to require the production of documents and answers to questions;[7] and to take samples for analysis.[8] In the case of a fire or explosion resulting in loss of life, personal injury, or property damage, an inspector…

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: [2022] VSC 208
Decision Date: 29 April 2022

CaseChat Overview and Summary

In the case of Victorian WorkCover Authority v Baldwin (No 2), the plaintiff, Victorian WorkCover Authority, sought to recover costs incurred in cleaning up an industrial site from the defendant, Baldwin. The matter came before the court as a summary judgment application, where the plaintiff argued for the recovery of expenses related to the remediation of the site. The court was tasked with determining whether the plaintiff had real prospects of success in its claim against Baldwin.

The primary legal issue before the court was whether the plaintiff had established that it had real prospects of success in its claim against the defendant. Under the Civil Procedure Act 2010 (Vic), sections 62 and 63, the court assessed the evidence and arguments presented by both parties to determine if the plaintiff’s claim had a realistic chance of succeeding at trial. The court focused on the factual basis of the claim, including the extent of Baldwin’s involvement in the contamination of the site and the likelihood that the plaintiff could recover the costs from him.

The court found that the plaintiff had not demonstrated real prospects of success in its claim. It considered the evidence presented regarding Baldwin’s involvement and concluded that there were significant uncertainties and gaps in the plaintiff’s case. The court highlighted that the plaintiff had not provided sufficient evidence to prove Baldwin’s liability or the extent of his contribution to the contamination. As a result, the court ruled that the plaintiff's summary judgment application was not well-founded and refused the application.

The court did not make any orders regarding the costs of the summary judgment application, leaving that matter for the parties to address in future proceedings. The refusal of the summary judgment application meant that the case would proceed to trial, allowing both parties to present their full cases before a determination could be made on the liability and potential recovery of costs.

Orders