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 defendant. In that action the parties had consented to judgment being entered for the plaintiff against the defendant, Steven Dorman Shearing Pty Ltd, for $65,000 in addition to payments made by the defendant to the plaintiff pursuant to the Workers' Compensation and Rehabilitation Act 1981.
After these details came to light the defendant, Fares Rural Co Pty Ltd, applied to the Deputy Registrar for summary judgment against the plaintiff on the ground that the plaintiff had already recovered his damages under the consent judgment and was not entitled to recover in aggregate more than the amount of the initial settlement. On 25 October 2000 the Deputy Registrar dismissed the plaintiff's action with costs and ordered the plaintiff to pay the defendant the costs of the third party proceedings.
The plaintiff now seeks leave for an extension of time in which to appeal against this decision of the Deputy Registrar. Order 6, r 11 of the Rules of the District Court require a Notice of Appeal to be served and filed within 5 days from the date of the judgment appealed against. In an affidavit dated 9 February 2001 the appellant (plaintiff) concedes that he did not file a Notice of Appeal within time. While acknowledging that he was informed by his solicitors of the decision of the Registrar on the date it was made he said he left Perth for New Zealand on 30 October 2000 and did not return until 22 November 2000. He claims he was unable to contact his solicitor before leaving for New Zealand and it was only on his return that he received a letter dated 14 December 2000 from his solicitor enclosing advice received from counsel. Because he had no telephone at home the appellant claimed he was limited to communicating with his solicitor in writing and could only speak to him on a public telephone. He eventually telephoned his solicitors on 16 January 2001 and discussed the prospects of an appeal against the decision of the Registrar in the light of the advice received by counsel. He alleges in his affidavit that he was unable to give his solicitor proper instructions in relation to an appeal before leaving Perth for New Zealand and, after his return, wanted to hear from counsel before deciding whether to proceed any further.
In an affidavit opposing the appellant's application for an extension of time in which to appeal the respondent (defendant) has drawn attention to certain correspondence exchanged between the parties and comments made by counsel at the hearing before the Registrar on 25 October 2000 indicating that the appellant intended from the outset to appeal against an anticipated adverse judgment from the Registrar.
The principles to be considered in relation to the exercise of the discretion to extend time under the Rules were explained in Gallo v Dawson (1990) 64 ALJR 458 where McHugh J said at 459:
"The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency C of Australia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194‑195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Griff p1967] VR 871 at 872; Hughes (at 263‑264); Mitchelson v Mitchelson (1979) 37 FLR 289 at 290‑291. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
'The rules of the court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'"
The appellant's application for an extension of time was filed on or about 12 February 2001 some three and a half months after judgment had been given. The longer the delay the more cogent the reasons for such a delay must be: Girando v Girando (1997) 18 WAR 450 at 455. This delay was substantial and requires the most compelling reasons before it can be condoned. Having said that I am not at all satisfied with the explanation given for the delay. Given that the appellant's solicitors had apparently received advice from counsel as to the merits as early as June 2000, and the fact that the appellant was notified by his solicitors of the outcome of the application on the day the decision was given, I believe both the appellant and his solicitors had ample time to decide whether to appeal before the appellant left for New Zealand. Even if that were not the case his explanation for not making a decision while in New Zealand or even upon his return from New Zealand is unconvincing. His claim that he did not have ready access to a telephone, and had to rely on written correspondence, is simply not plausible. I cannot accept he could not have contacted his solicitors by telephone both from New Zealand and from home immediately upon his return. I am not convinced there has been an adequate explanation for the long delay and, in my view, the respondent would tend to be prejudiced by the judgment being called into question upon so flimsy an explanation as to why the proceedings were not brought in time.
The other issue I have to decide is the merit of the proposed appeal. The Deputy Registrar reached the conclusion that the plaintiff's claim for damages had been fully satisfied by the consent judgment. While acknowledging that the appellant (defendant) and Steven Dorman Shearing Pty Ltd were joint tortfeasors, and that judgment against one was not a bar to a subsequent action against the other pursuant to s 7(1)(a) of the Law Reform Contributory Negligence and Tortfeasors Contribution Act 1947, the Deputy Registrar found that the plaintiff had recovered the sum under the consent judgment and under s 7(1b) of the Act was precluded from recovering judgment from the other. Bayley v Wesfarmers Transport Ltd [2000] WASCA 399 delivered 14 December 2000.
The argument which the appellant now seeks to advance is that while the injuries arise out of one and the same incident the cause of action against the respondent as occupier and Steven Dorman Shearing Pty Ltd as the third party are quite distinct and that the employer and occupier are not joint tortfeasors to whom s 7 of the Law Reform Contributory Negligence and Tortfeasors Contribution Act 1947 applies. In support of this submission the appellant has emphasised that the torts of negligence and liability as an occupier give rise to separate causes of action. In this regard the appellant referred to the decision of Anderson J in Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994 in which his Honour said:
"In my opinion the Occupiers Liability Act leaves no room for the operation of the doctrines of the common law as regards the duty of care that is owed by an occupier to an entrant. It is no longer the common law that imposes the duty but the Statute and the nature and extent of the duty as defined by the Statute. Insofar as paragraph 6 of the Statement of Claim seeks to plead a separate cause of action based upon common law principles or seeks to invoke those principles in aid of the action based upon the Statute, it is misconceived and discloses no cause of action. The duty upon the respondent was the duty imposed by the Statute."
While conceding that he was injured while working for Steven Dorman Shearing Pty Ltd the appellant has submitted that the respondent owned and occupied the premises which were allegedly unsafe at the time. Two separate causes of action are said to arise: the first against an employer with an unsafe system of work and the second against an occupier responsible for unsafe premises. While both the respondent and the employer were engaged in the same shearing operation it is said that each is separately liable for the same damage and capable of being sued individually on the basis of a different cause of action.
If this argument is correct, as it well might be, the question still arises whether the consent judgment is a bar to the plaintiff's action against the defendant. If, as has been argued, the respondent (defendant) and the employer are jointly and severally liable to the plaintiff (appellant) there is no reason why each should not be sued together or even separately in different actions. Where, however, judgment is entered against one the entry of judgment against the other may be precluded. That this is so is evident from s 7(1)(b) of the Act which provides that:
"If more than one action s brought in respect of that damage by or on behalf of the person by whom it was suffered…against tortfeasors liable in respect of the damage (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 judgment first given…"
The significance of this provision as far as these proceedings is concerned is that it is not confined to separate actions brought in respect of the same damage against joint tortfeasors. It also applies to more than one action brought in respect of the same damage against tortfeasors other than joint tortfeasors. This would include tortfeasors whose liability could be categorised as several or joint and several. The effect of the provision is explained by Fleming in the Law of Torts (9th ed) at p 292 in the following terms:
"Moreover, Statute now provides that even if sued separately (whether as joint tortfeasors or otherwise), the sums recoverable under the judgments given in those actions shall not in the aggregate exceed the amount awarded in the first…"
It is clear from this provision of the Act, and the various authorities referred to by counsel for the respondent, that, even if the occupier and employer are not joint tortfeasors, the entry of judgment against the one precludes the recovery of any damages in a judgment awarded against the other.
For the reasons I have explained I do not believe the appellant has given an adequate explanation for failing to appeal within the time allowed. Even if an extension of time were allowed I have come to the conclusion that the plaintiff's appeal would not succeed as a matter of law. In the circumstances the decision of the Registrar must be confirmed and the appeal dismissed.