Walker v Fares Rural Co Pty Ltd - [2001] WADC 94

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WALKER -v- FARES RURAL CO PTY LTD [2001] WADC 94

CORAM: MULLER DCJ

HEARD: 2 APRIL 2001

DELIVERED : 3 MAY 2001

FILE NO/S: CIV 4018 of 1999

BETWEEN: TREVOR ALAN WALKER
Appellant (Plaintiff)
AND
FARES RURAL CO PTY LTD
Respondent (Defendant)

Catchwords:

Appeal from Deputy Registrar - Application for extension of time in which to appeal - Adequacy of appellant's reasons for delay - Section 7(1)(b) Law Reform Contributory Negligence and Tortfeasors Contribution Act 1947 - Whether entry of judgment against one tortfeasor precludes recovery of damages from another

Legislation:

Occupiers Liability Act, s 5

Workers' Compensation and Rehabilitation Act 1981
Rules of District Court, O 6, r 11

Law Reform Contributory Negligence and Tortfeasors Contribution Act 1947, s 7(b)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Plaintiff) : Mr T N Cullity
Respondent (Defendant) : Mr H N Healy

Solicitors:

Appellant (Plaintiff) : D'Angelo & Partners
Respondent (Defendant) : Phillips Fox

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

Bayley v Wesfarmers Transport Ltd [2000] WASCA 399
Gallo v Dawson (1990) 64 ALJR 458
Girando v Girando (1997) 18 WAR 450
Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994

Case(s) also cited:

Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139
Gallo v Dawson (1992) 109 ALR 319
Burton v President of the Shire of Bairnsdale (1908) 7 CLR 76
Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159
Bryanston Finance Ltd v de Vries [1975] QB 703
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1983-84) CLR 448
Boyle v State Rail Authority (NSW) (1997) 14 NSW CCR 374

MULLER DCJ: This is an appeal by the plaintiff against the decision of the Deputy Registrar made on 25 October 2000 dismissing the plaintiff's action with costs and ordering the plaintiff to pay the defendant the cost of the third party proceedings and to indemnify the defendant against any costs payable to the third party.
The plaintiff commenced his action against the defendant by writ of summons dated 20 October 1999. In his statement of claim the plaintiff alleged that on 17 March 1997 he had sustained an ankle injury while working for his then employer as a shearer on premises occupied and controlled by the defendant. His claim against the defendant was based on the defendant's negligence and/or breach of duty as an occupier of premises under s 5 of the Occupiers' Liability Act.
Having entered an appearance to defend the action the defendant joined the plaintiff's employer, Steven Dorman Pty Ltd, as a third party in the proceedings. During the course of the third party proceedings it came to light that the plaintiff had previously commenced proceedings against his then employer, Steven Dorman Shearing Pty Ltd, for damages arising out of the same injury suffered on 17 March 1997 for which he had later sued the…

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: [2001] WADC 94
Decision Date: 3 MAY 2001

CaseChat Overview and Summary

The matter of Walker v Fares Rural Co Pty Ltd involved the appellant, Walker, appealing against the refusal of the Deputy Registrar to extend the time in which to appeal against a judgment entered against him. The dispute centred on the adequacy of the reasons Walker provided for the delay in lodging his appeal and the implications of a prior judgment against one defendant on the potential recovery of damages from another defendant. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the appellant had provided sufficient reasons for the delay in lodging his appeal, as required by section 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947. Additionally, the court had to determine whether the entry of judgment against one defendant precluded the plaintiff from recovering damages from another defendant. The court needed to balance the statutory requirements for extensions of time with the principles of contributory negligence and joint liability.

The court held that the reasons provided by the appellant were inadequate to justify the delay in lodging the appeal, as they did not sufficiently address the circumstances leading to the delay. The court found that the appellant's reasons were insufficient to meet the threshold set by section 7(1)(b) of the Act. Furthermore, the court confirmed that the entry of judgment against one defendant did not preclude the plaintiff from seeking damages from another defendant. The court reasoned that each defendant remained jointly and severally liable for the damages, and the plaintiff could pursue recovery against any defendant who was found to be liable.

As a result of the court's decision, the appeal was dismissed, and the orders of the Deputy Registrar were affirmed. The appellant was not granted an extension of time to appeal the judgment, and the liability of the other defendants remained unaffected by the judgment against the first defendant. The court's ruling underscored the importance of timely compliance with statutory requirements for extensions of time and the distinct nature of joint and several liability in tort cases.

Orders