Willis v Normandy Golden Grove Operations Pty Ltd - [2003] WASCA 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: WILLIS -v- NORMANDY GOLDEN GROVE OPERATIONS PTY LTD [2003] WASCA 221

CORAM: MALCOLM CJ
MCKECHNIE J

HEARD: 19 AUGUST 2003

DELIVERED : 19 SEPTEMBER 2003

FILE NO/S: CIV 1814 of 2003

BETWEEN: RAYMOND DAVID WILLIS
Applicant
AND
NORMANDY GOLDEN GROVE OPERATIONS PTY LTD
Respondent

Catchwords:

Practice and procedure - Late discovery by party - Whether prejudice caused to the other party - Application to amend defence - Whether prejudice to other party

Legislation:

Workers Compensation and Rehabilitation Act 1981 (WA)

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Applicant: Mr R J L McCormack
Respondent: Ms F C E Davis

Solicitors:

Applicant: Bradley & Bayly
Respondent: Phillips Fox

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

Willis v Normandy Golden Grove Operations Pty Ltd [2003] WADC 138

Case(s) also cited:

Clough and Rogers v Frog (1974) 4 ALR 615
Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173
Hewitt v Benale & WMC Resources Ltd v Koljibabic [2002] WASCA 163
State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146
TNT Australia v Christie [2003] NSWCA 47

MALCOLM CJ: In my opinion, the applicant should be granted leave to appeal and the appeal allowed. I have reached that conclusion for the reasons to be published by McKechnie J with which I agree entirely.
MCKECHNIE J: At the hearing of this contested application for leave to appeal both parties advanced argument by way of oral and written submissions which canvassed the substantive aspects of the matter. With the agreement of the parties, it was decided to treat the hearing as both an application for leave and the appeal.
The facts giving rise to the appeal are set out in the judgment of Jenkins DCJ delivered on 19 June 2003 and reported as Willis v Normandy Golden Grove Operations Pty Ltd [2003] WADC 138. I shall refer to the applicant as the plaintiff and the respondent as the defendant. The plaintiff's statement of claim alleges that the defendant operated the Scuddles Mine at Golden Grove near Yalgoo, upon which was an inspection platform near the feed chute at the crusher at the mine. On 27 September 1996, at the mine, the plaintiff, in the course of his employment as a fitter with Monadelphous Engineering, was working on the platform when the hand rails and stauncheons collapsed, because they were not in a proper state of maintenance and repair and were defective, causing him to fall to the ground below and to suffer significant injuries to his legs and lower back. The claim was based on negligence and breach of duties as an occupier under the Occupiers Liability Act 1985 (WA).
The original defence, apparently filed in January 2002, was a simple defence of non‑admission or denial. Although contributory negligence was pleaded, no particulars were given.
At issue before her Honour was an application by Normandy Golden…

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: [2003] WASCA 221
Decision Date: 19 SEPTEMBER 2003

CaseChat Overview and Summary

In the matter of Willis v Normandy Golden Grove Operations Pty Ltd, the plaintiff, who was injured in an accident at the Scuddles Mine, sought damages from the defendant, Normandy Golden Grove Operations Pty Ltd, for negligence and breach of occupier duties. The plaintiff alleged that the defendant failed to maintain the inspection platform properly, leading to his fall and injuries. The defendant initially denied the allegations but later sought to amend its defence to argue that it was a deemed employer under the Workers Compensation and Rehabilitation Act and that the plaintiff was therefore barred from seeking damages. The plaintiff opposed the amendment, arguing that it was prejudiced by the delay in discovering the relevant contract.

The primary legal issue before the court was whether the defendant should be allowed to amend its defence to include the argument that it was a deemed employer, which would bar the plaintiff from recovering damages. The court had to consider whether the amendment would cause undue prejudice to the plaintiff, given the late discovery of the relevant contract and the implications of the proposed amendment. The court also needed to assess whether the defendant's belated discovery of the contract justified the amendment.

The court, in delivering its decision, correctly noted that the grant or refusal of leave to amend pleadings is a matter of discretion. The court identified the relevant authorities and applied them to the exercise of discretion, correctly focusing on whether the plaintiff would be prejudiced by the amendment. The court concluded that the plaintiff was not prejudiced because the plaintiff had not been aware of the contract's existence prior to the amendment application, and the contract did not alter the plaintiff's entitlement to damages. The court found that the defendant's belated discovery of the contract did not warrant disallowing the amendment. Consequently, the court allowed the amendment, enabling the defendant to argue that it was a deemed employer and that the plaintiff was barred from recovering damages.

The court's final order allowed the defendant to amend its defence to include the argument that it was a deemed employer under the Workers Compensation and Rehabilitation Act, thereby barring the plaintiff from recovering damages. This decision highlights the importance of timely discovery and the court's discretion in allowing amendments to pleadings, particularly when considering the potential prejudice to the opposing party.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The facts giving rise to the appeal are set out in the judgment of Jenkins DCJ delivered on 19 June 2003 and reported as Willis v Normandy Golden Grove Operations Pty Ltd [2003] WADC 138. I shall refer to the applicant as the plaintiff and the respondent as the defendant. The plaintiff's statement of claim alleges that the defendant operated the Scuddles Mine at Golden Grove near Yalgoo, upon which was an inspection platform near the feed chute at the crusher at the mine. On 27 September 1996, at the mine, the plaintiff, in the course of his employment as a fitter with Monadelphous Engineering, was working on the platform when the hand rails and stauncheons collapsed, because they were not in a proper state of maintenance and repair and were defective, causing him to fall to the ground below and to suffer significant injuries to his legs and lower back. The claim was based on negligence and breach of duties as an occupier under the Occupiers Liability Act 1985 (WA). The original defence, apparently filed in January 2002, was a simple defence of non‑admission or denial. Although contributory negligence was pleaded, no particulars were given. At issue before her Honour was an application by Normandy Golden Grove to amend its defence to plead that the defendant is a deemed employer pursuant to s 175 of the Workers Compensation and Rehabilitation Act and therefore, by virtue of s 93E(3) of the Act, the plaintiff is not entitled to an award of damages against the defendant because the plaintiff has not, at any material time, either agreed with the defendant that the plaintiff's level of disability is not less than a relevant level for the purposes of the Act or obtained a determination as to the relevant level of disability for the purposes of the Act. There was great significance in the pleading of this defence. The action had been entered for trial on 16 September 2002 and on 27 September 2002 any action by the plaintiff against the employer in respect of the accident became statute barred. Therefore, if the The application was resisted by the plaintiff on a number of bases only one of which is relevant for present purposes. On 17 February 2003 the defendant informally discovered a contract between Normandy Grove, or correctly Murchison Zinc Co Pty Ltd, and Monadelphous Engineering Associates Pty Ltd ("Monadelphous"). It was not in dispute that the contract was at all times relevant and should have been discovered prior to entry for trial. The plaintiff argued before Jenkins DCJ, and before this Court, that until the contract was discovered, the plaintiff did not know of the relationship between Monadelphous and the defendant or obligations assumed by Monadelphous with respect to the plant that the plaintiff was using. The Judge correctly noted that the grant or refusal of leave to amend is a matter of discretion and, with respect, correctly identified the relevant authorities and applied them correctly to the exercise of the discretion. She identified the correct question at par 29 as follows:"The alleged injustice is the fact that the plaintiff is now statute barred from commencing an action against or joining to this action the employer. If that situation has arisen as a consequence of the belated discovery of the contract or the application for leave to amend the defence then that is an injustice that would warrant me disallowing the amendment. Otherwise the application should be allowed."