Wheeler v SDS Ausminco Ltd
[2001] VSC 261
•3 August 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WARRNAMBOOL
COMMON LAW DIVISION
No. 1362 of 2000
| PHILLIP JOHN WHEELER | Plaintiff |
| v. | |
| SDS AUSMINCO LIMITED AND WESTERN MINING CORPORATION PTY. LTD. | Defendants |
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JUDGE: | HARPER, J | |
WHERE HELD: | WARRNAMBOOL | |
DATE OF HEARING: | 1 and 3 MAY 2001 | |
DATE OF RULING: | 3 AUGUST 2001 | |
CASE MAY BE CITED AS: | WHEELER v. SDS AUSMINCO LTD. & ANOR. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 261 | |
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CATCHWORDS: Ruling – Application by plaintiff's employer to intervene – Personal injury sustained in South Australia – Levy v. The State of Victoria (1997) 189 C.L.R. 579 applied - Hocking v. Southern Greyhound Racing Club Inc. (1993) 61 S.A.S.R. 213 considered – John Pfeiffer Pty. Ltd. v. Rogerson (2000) 74 A.L.J.R. 1, 109 followed – Workers Rehabilitation and Compensation Act 1986 (S.A.), ss. 54, 123A – Rules of Supreme Court (Vic.), r.9.06(b)(ii) – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. T. Tobin | Stringer Clark |
| For the Second Defendant | Mr. R. Meldrum QC | Phillips Fox |
| For Select Staff Pty. Ltd. | Mr. A. Ramsay | Piper Alderman Lawyers |
HIS HONOUR:
On 10 May 2000 the plaintiff, Phillip John Wheeler, issued a writ out of the Supreme Court of Victoria at Warrnambool. A statement of claim was attached. In it, he alleges that, at Roxby Downs in South Australia on 24 November 1997, he was injured when the canopy of a tree mulcher fell on his right arm.
According to the writ, the plaintiff was then employed by Select Staff Pty. Ltd., the present applicant. It had, so it is alleged in the writ, "hired" the plaintiff to the first defendant, SDS Ausminco Limited ("Ausminco"). When the accident happened, the plaintiff was "undertaking maintenance work" for Ausminco on the mulcher, which was owned by the second defendant, Western Mining Corporation Pty. Ltd. ("WMC"). The plaintiff alleges that Ausminco was at the relevant time in breach of a duty of care to provide him with "a safe place of work … and proper and safe plant and appliances … and a proper and safe system of conducting his work and efficient supervision of such work." As owner of the mulcher, WMC, for its part, was in breach of a duty of care to advise the plaintiff that the mulcher had been modified or was defective, and that it was therefore dangerous.
The applicant is a labour hire company. It asserts that a contract of employment was made in South Australia between it and the plaintiff. As a consequence, the Workers Rehabilitation and Compensation Act 1986 (S.A.) ("the Act") applies to regulate the plaintiff’s entitlement to, and the applicant’s obligation to provide him with, compensation for injuries suffered by him in the course of his employment.
The Act provides, by s.54 (1)(a), that except where the use of a motor vehicle is involved no liability other than a liability under the Act attaches to an employer in respect of a compensable disability. A "compensable disability" is defined (by a combination of ss.3(1), 30B and 31) as including a physical injury that arises from employment; that is, one which is suffered by an employee acting in connection with, and for the purposes of, the employer’s trade or business. The Act therefore precludes any action for damages against an employer by an employee who is injured at work. It does not, however, preclude the employee from suing a wrongdoer other than the employer for damages suffered as a result of a breach by the wrongdoer of a duty owed by the wrongdoer to the employee. At the same time, neither the possibility nor the actuality of the institution of proceedings by the employee against a wrongdoing third party relieves the employer of its obligation, imposed by the Act, to compensate its injured worker. The prospect that the employee will receive both compensation and damages for the same injury is therefore raised.
The Act, by the provisions of s.54, seeks to avoid this result. It also seeks to ensure that a wrongdoer does not escape the consequences of its breach by sheltering under the umbrella of compensation paid out by a possibly blameless employer. By s.s.(5), where compensation is paid or payable (necessarily, by the employer or its worker’s compensation insurer) and a right of action exists against a person other than the employer, the person by whom the compensation is paid or payable is entitled to recover that compensation from that other person. Sub-section (7) then provides that where the conditions referred to in s.s.(5) obtain, and where the injured worker has received or is entitled to receive damages from the wrongdoer, then the person responsible for paying the compensation may recover the amount involved from either the wrongdoer or from the employee. No amount may be recovered (a) from the wrongdoer, in excess of its unsatisfied liability to the worker, or (b) from the worker, in excess of the amount of the damages received by him or her. Any amount recovered from the wrongdoer shall be deemed to be an amount paid towards satisfaction of its liability to the employee; and an action for recovery may be heard and determined in the Workers Compensation Tribunal of South Australia.
On 11 December 2000, Select Staff instituted an action accordingly. It seeks to further protect its position by intervening in the present proceeding. A summons was issued on 27 April this year seeking the necessary leave. This may be granted at any stage of a proceeding: r.9.06 of the Rules of the Supreme Court. Occasion for exercise of the power arises where "there may exist a question arising out of or relating to or connected with any claim in the proceeding which it is just and convenient to determine as between [the applicant] and [any] party": r.9.06(b)(ii). It may also arise as an incident of the power to hear and determine those matters which fall within the Court's jurisdiction: Levy v. The State of Victoria[1].
[1](1997) 189 C.L.R. 579
The application was first brought on before me at the commencement of the Court’s sitting in Warrnambool on 1 May. The parties to it not then being in a position to argue it fully, and there being much other business before the Court that day, the substantive hearing took place on 3 May. There was no suggestion at that time that the proceeding had reached a stage at which inconvenience, let alone injustice, would be caused were the application to succeed. Unfortunately, other business and a period of sabbatical leave have since intervened to delay the delivery of these reasons. It is therefore appropriate to say that I will hear any present party who seeks directions as to the interlocutory steps which should be taken as a consequence of the orders I propose to make today. Any such application must be made to my Associate within 14 days of the delivery of these reasons.
For the moment, however, the issue is whether there exists a question (a) arising out of any claim raised on the pleadings which it is just and convenient to determine as between the applicant and any of the present parties, or (b) which is incidental to a matter within the Court's jurisdiction.
In Levy v. Victoria, the plaintiff argued that regulation 5 of the Wildlife (Game) (Hunting Season) Regulations 1994 were invalid. It was submitted that freedom of political communication is fundamental to the workings of Australia's constitutional arrangements, and that this freedom was improperly limited by the regulations: they purported to prevent the plaintiff from taking action (entering a permitted hunting area without a game licence) the purpose of which was to communicate his opposition to Victoria's hunting laws.
Certain members of the media claimed the right to intervene. It was argued on their behalf that their interests were likely to be substantially affected by the judgment in Levy's case. The submission was upheld. Brennan, C.J. said, at 602, that "where a substantial affection of a person's legal interests is demonstrable (as in the case of a party to pending litigation) or likely, a pre-condition for the grant of leave to intervene is satisfied". His Honour added: "Nothing short of such an affection of legal interests will suffice."
Kirby, J. adopted a somewhat more relaxed position. He was, it is true, principally concerned with the right to intervene in proceedings in the High Court. As the final court of appeal for Australia, that Court has the "function of finally declaring the law of Australia in a particular case for application to all such cases" (emphasis as in the original): see his Honour's judgment at 650-651. Applications for leave to intervene in the High Court are therefore necessarily to be distinguished from applications for leave to intervene in proceedings elsewhere: the discharge of the special responsibilities of the High Court may be assisted by interveners where other courts, not bearing those responsibilities, would gain no – or no commensurate – benefit. On the other hand, his Honour expressed the view that "[t]here has also developed a growing appreciation that finding the law in a particular case is far from a mechanical task" which "often involves the elucidation of complex questions of legal principle and legal policy as well as of decided authority." Such elucidation may be assisted by submissions put through an intervener. His Honour also noted that, in the United States of America as in Canada, the practice of hearing submissions from interveners and amicus curiae is well established; and that in recent years, some Australian courts have also favoured a more liberal approach to permitting interveners and amicus. This, according to his Honour, should not give rise to undue concern, at least in the High Court, provided that the primacy of the parties is protected.
Another case of present relevance is Hocking v. Southern Greyhound Racing Club Inc.[2]. It concerned an application to intervene made by the South Australian Workers' Rehabilitation and Compensation Corporation. The Corporation had made payments of compensation to Mr. Hocking following an injury sustained by him when, while working for D.A. & C.M. Payne Kennels at a greyhound raceway owned and occupied by the Southern Greyhound Racing Club, he was struck by a lure which was travelling along the inside rail of the track.
[2](1993) 61 S.A.S.R. 213
Mr. Hocking had instituted an action against both his employer and the club seeking damages at common law for the injuries he sustained. He later discontinued as against his employer, doubtless having regard to the provisions of s.54(1) of the Act. Then, on 5 January 1993, the Corporation gave notice pursuant to s.54(7) to both Mr. Hocking and the club of its entitlement to recover the compensation paid or payable by it to Mr. Hocking. A month later, an application to intervene in Mr. Hocking's action against the club was made pursuant to s.123A of the Act. This provides (among other things) that the Corporation has a right to intervene and be heard in any proceedings before a court in which the Corporation's interests may be directly or indirectly affected.
It was held by King, C.J., Millhouse and Debelle, JJ. that the application should be granted. In the words of Debelle, J. at 218:
"There can be little doubt that the Corporation has at least an indirect, if not a direct, interest in this action. Pursuant to s.54(7) of the Act, the Corporation is entitled to recover from Hocking the amount of compensation paid or payable by it out of any damages received by him. Section 54(7)(e) provides that, on giving notice to a wrongdoer of its entitlement to recover compensation under s.54, the Corporation shall have a first charge on damages payable by the wrongdoer … Subject to compliance with the terms of s.54(7), the Corporation may recover from Hocking or the Greyhound Racing Club, if it is found to be liable to Hocking, the compensation it has paid or will have to pay. The Corporation, therefore, has an interest in the proceeds, if any, of this action. At the very least, its interest is to protect its right to recover from Mr. Hocking or the Greyhound Racing Club should the latter be held to be liable to Hocking."
The existence, in a workers' compensation insurer, of a direct or indirect interest in proceedings between an injured worker and the person allegedly responsible for that injury does not necessarily mean that (to adopt the test enunciated by the Rules of the Supreme Court of Victoria) there exists a question arising out of or relating to or connected with any claim in proceedings between the worker and the wrongdoer which it is just and convenient to determine as between the insurer and the litigants. If Hocking's case is rightly determined, however, then the present applicant has an interest of the kind identified by Debelle, J. in the present litigation, and it is at least arguable that it is "just and convenient" to determine in the present proceeding the "question" of the protection of the applicant's right to recover from Mr. Wheeler or one or both defendants; and it is likewise arguable that that question arises out of or relates to or is connected with a claim in the proceeding.
In any event, the Full Court of the Supreme Court of South Australia held in Hocking's case that the proceeding instituted by Mr. Hocking against the club was, in the words of s.123A of the Act, one "in which the Corporation's interest may be directly or indirectly affected" (emphasis supplied). In the opinion of King, C.J., at 217, the proceeding "may affect the interest of the [Corporation]" (emphasis again supplied). I have already quoted Debelle, J. as expressing "little doubt that the Corporation has at least an indirect, if not a direct, interest". His Honour would therefore presumably hold that the Corporation met not only the test prescribed by the Act, but also that postulated by Brennan, C.J.
The use by King, C.J. of the word "may" perhaps indicates that, were his Honour to apply that test (that is, the test postulated by Brennan, C.J.) rather than that prescribed by s.123A, the Corporation would fail to pass; but in any event it would, as I read the judgments, pass that which Kirby, J. appears to favour.
For the purpose of the proceeding before me, the applicant stands in the same position as the Corporation, save to the extent that I am bound by the provisions of r.9.06(b)(ii) rather than either s.123A or the considerations which determined the outcome of the application to intervene in Levy's case. The special position of the High Court in relation to such applications must of course be recognised. With that caveat, consistency of approach to the task before me with that taken by the Supreme Court of South Australia is obviously advantageous, save to the extent that legislation or other applicable rules require otherwise.
It is convenient here to refer to the decision handed down by the High Court on 21 June 2000 in John Pfeiffer Pty. Ltd. v. Rogerson (2000) 74 A.L.J.R. 1,109. The High Court there held that the common law should now be developed so that the law of the place where the tort was committed (the lex loci delicti) rather than the law of the court in which the case is to be tried (the lex fori) is the governing law with respect to torts committed in Australia which have an interstate element. It follows that the lex loci delecti should be applied as the law governing all questions of substance to be determined. Moreover, laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws: see the joint judgment of Gleeson, C.J., Gaudron, McHugh, Gummow and Hayne, JJ. at [87] and [102].
It follows that, because the plaintiff alleges a wrong done to him in South Australia, the law of that State governs all issues of substance in this case. The rights of the applicant are matters of substance, and so they too are governed by South Australian law. The right to intervene may, if there is an issue about (for example) the amount (if any) which has been received by the plaintiff from the applicant or from either defendant, be the only means available to the applicant by which to protect those rights. And, as the High Court made plain in Rogerson's case, the outcome of litigation involving a civil wrong should not depend upon the law of the jurisdiction in which the resultant litigation is heard.
For these reasons, it seems to me that the application should succeed. The applicant should be given leave to intervene. It will be for the trial judge to determine the extent of that intervention and any procedural questions which arise from it.
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