Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd
[2004] WASCA 196 (S)
•20 DECEMBER 2005
WOOLWORTHS (WA) PTY LTD -v- BERKELEY CHALLENGE PTY LTD [2004] WASCA 196 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 196 (S) | |
| THE FULL COURT (WA) | 20/12/2005 | ||
| Case No: | FUL:68/2003 | 16 JUNE 2004 & 9 NOVEMBER 2005 | |
| Coram: | MALCOLM CJ MURRAY J JENKINS J | 27/08/04 | |
| 9/11/05 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Final orders made | ||
| B | |||
| PDF Version |
| Parties: | WOOLWORTHS (WA) PTY LTD BERKELEY CHALLENGE PTY LTD |
Catchwords: | Practice and procedure Appeal heard and reasons published Final orders not made No ground to reopen question of res judicata affecting contribution proceedings No ground to further argue question of contributory negligence affecting contribution proceedings Turns on own facts |
Legislation: | Nil |
Case References: | Astley v Austrust Ltd (1999) 197 CLR 1 De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 Minister for Education v Klein [2005] WASCA 185 (S) Autodesk Inc v Dyason (1993) 176 CLR 300 Hoad v Nationwide News (1997) 37 IPR 407 Joslyn v Berryman (2003) 214 CLR 552 McAdam v Robertson (1999) 73 SASR 360 Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 Pantorno v The Queen (1989) 166 CLR 466 Podrebersek v Australian Iron & Steel Ltd (1985) 59 AJLR 492 Stambulish v Ekamper [2002] WASCA 212 State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WOOLWORTHS (WA) PTY LTD -v- BERKELEY CHALLENGE PTY LTD [2004] WASCA 196 (S) CORAM : MALCOLM CJ
- MURRAY J
JENKINS J
DECISION : 9 NOVEMBER 2005
PUBLISHED : 20 DECEMBER 2005 FILE NO/S : FUL 68 of 2003 BETWEEN : WOOLWORTHS (WA) PTY LTD
- Appellant
AND
BERKELEY CHALLENGE PTY LTD
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FRENCH DCJ
Citation : STONE -v- BERKELEY CHALLENGE PTY LTD & ANOR [2003] WADC 94
File No : CIV 2305 of 2000
Catchwords:
Practice and procedure - Appeal heard and reasons published - Final orders not made - No ground to reopen question of res judicata affecting contribution proceedings - No ground to further argue question of contributory negligence affecting contribution proceedings - Turns on own facts
Legislation:
Nil
Result:
Final orders made
Category: B
Representation:
Counsel:
Appellant : Mr M L Greenland
Respondent : Mr D R Clyne
Solicitors:
Appellant : Greenland Brooksby
Respondent : Pynt & Partners
(Page 3)
Case(s) referred to in judgment(s):
Astley v Austrust Ltd (1999) 197 CLR 1
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Minister for Education v Klein [2005] WASCA 185 (S)
Case(s) also cited:
Autodesk Inc v Dyason (1993) 176 CLR 300
Hoad v Nationwide News (1997) 37 IPR 407
Joslyn v Berryman (2003) 214 CLR 552
McAdam v Robertson (1999) 73 SASR 360
Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134
Pantorno v The Queen (1989) 166 CLR 466
Podrebersek v Australian Iron & Steel Ltd (1985) 59 AJLR 492
Stambulish v Ekamper [2002] WASCA 212
State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65
(Page 4)
1 JUDGMENT OF THE COURT: This appeal arises out of an action brought by a Ms Stone who sued the appellant, her employer and the occupier of a supermarket where she was employed, and the respondent, a cleaning company contracted to clean those premises, for damages for personal injury she suffered when she slipped on a wet floor in the staff lunchroom.
2 The appeal was brought in relation to contribution proceedings brought by the appellant against the respondent which were defended in the District Court, following a consent judgment for Ms Stone against the appellant and the consequent discontinuance of her action against the respondent.
3 In the contribution proceedings, the trial Judge held that the respondent was not obliged to make a contribution under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 because the appellant had failed to establish that the respondent was negligent. That was the issue raised in the appeal and in the first ground of a notice of contention filed by the respondent. By ground 2 of the notice of contention the respondent submitted that the trial Judge's decision should be upheld upon a ground not considered by her Honour, that it was not established that the appellant was negligent, and so it was not a tortfeasor entitled to contribution, within the meaning of s 7(1)(c) of the Law Reform Act. This argument was put despite the consent judgment in the District Court for Ms Stone, the injured plaintiff, against the appellant.
4 The appeal was heard on 16 June 2004 and the reasons of the Full Court were published on 27 August 2004. Relative to the matters now raised before us, with one qualification, we were unanimous in our view. The principal reasons were those of Murray J, with whom Malcolm CJ agreed. Jenkins J disagreed in relation to one aspect of the facts. But in the end, in her Honour's view, she would not have been led to a different conclusion upon the issues raised in the appeal, upon which her Honour delivered separate supplementary reasons.
5 We concluded that the trial Judge had erred in holding that upon the evidence and the facts as found by her Honour it was not established that the respondent negligently contributed to the loss and damage suffered by Ms Stone. We concluded that the appellant's liability as a tortfeasor was established by the consent judgment entered against it, and that, as a matter of res judicata, it was not open to the respondent now to argue that the judgment of the trial Judge should be upheld on the ground that the
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- appellant was not negligent which, as a matter of fact, we concluded it was, for reasons we then gave. We apportioned liability between the appellant and the respondent in the ratio 40:60.
6 As to the contention that the amount to which the respondent should be required to contribute should be reduced for Ms Stone's contributory negligence, not found by the trial Judge, we considered that on the facts found by her Honour it would not have been open to conclude that Ms Stone was negligent. Further, the majority, Jenkins J dissenting on this point, held that on a proper interpretation of the relevant provisions of the Law Reform Act it was not open to the respondent, following the judgment against the appellant which established the amount of its liability in respect of which it was entitled to seek contribution, to further reduce that amount by reference to the contributory negligence of the plaintiff, had any been established. These reasons should be read with the reasons published on 27 August 2004.
7 The Court, not having made any final orders, heard the respondent in its application to reopen the hearing of the appeal. In the light of the publication of the Court's reasons, it must be accepted that, as in the case where final orders have been made and not perfected, it will only be in exceptional circumstances that the Court will permit such a course. The respondent accepts that a heavy burden rests upon the party seeking to reopen such an appellate hearing. It must be demonstrated that there is a grave risk of injustice which has been incurred without fault (as opposed to oversight) on the part of the applicant.
8 The court has a discretion to reopen the hearing, but prima facie the public interest in relation to such an application lies in maintaining the finality of the litigation marked by the delivery of the court's final reasons. Therefore it must be seen that the risk of injustice is such as to override that consideration and there will be no injustice in requiring the applicant to suffer an adverse decision to which that party has contributed by its fault or substantial failure to fully ventilate relevant issues: see, by analogy, De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207, 215; and the authorities discussed by Steytler P in Minister for Education v Klein [2005] WASCA 185 (S) at [7] – [9].
9 In this case the Court heard and refused the application, going on to make the final orders that –
(Page 6)
- 1. The appeal be allowed and the judgment of the District Court be set aside.
2. The respondent pay the appellant $174,000.
3. The respondent pay the appellant's costs of the plaintiff's action in the contribution proceedings in the District Court to be taxed.
4. The respondent pay the appellant's costs of the appeal to be taxed.
10 The first point made by the respondent in support of its application was that the finding of res judicata to which we have referred was not the subject of submissions by either party and was raised by the Court itself for the first time in its reasons. This submission could not be made good. The question of res judicata flowed directly out of the respondent's second point in its notice of contention, although it had a consequential relevance to the question whether it was open to the trial Judge to make a finding about contributory negligence on the part of the plaintiff.
11 It was in the context of the second ground of contention that the matter was raised in debate at the hearing of the appeal on 16 June 2004. At T/40 counsel for the respondent said:
"The appellant in this case consented to judgment and the plaintiff discontinued the claim against us. For there to be a valid notice of contribution by the appellant against us, there is a preliminary step, we say, that needs to be established. In this case there needs to be a finding that the appellant was negligent. They have consented to negligence, but that doesn't mean that we are caught by that. You see, her Honour has found in effect that the second defendant, the appellant, was probably not negligent in this case."
12 At that point there was discussion about the question of res judicata. There was discussion about the decision of the High Court in James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53. When it was put to counsel that that case appeared to be against him in relation to the question under discussion, he said he would not pursue the point further because he was not "armed with persuasive authority". As appears from our reasons published on 27 August 2004, we were of the view that the concession was rightly made. There is therefore, in our opinion, no ground to reopen this question upon the basis that the respondent was
(Page 7)
- taken by surprise and did not have the opportunity to argue the point in the substantive hearing.
13 In any event, the point made, that the judgment against the appellant does not establish it to be a tortfeasor who may pursue a contribution from another tortfeasor jointly liable, is, in our opinion, without merit. The plaintiff sued the appellant in negligence and it pleaded, in traditional fashion, that the negligence arose out of the breach of the contract of employment which implied a duty of care particularised in precisely the same way as the plaintiff particularised the appellant's breach of duty in tort. This is a traditional form of pleading. It says no more than that the appellant's duty of care to the plaintiff arose out of the contractual relationship of employer and employee which subsisted between them.
14 Then there was a cause of action relied upon for breach of statutory duty, again particularised in just the same way as the particulars of negligence upon which the plaintiff placed reliance. In our opinion, it is abundantly clear, as a matter of law, that when judgment was entered for the plaintiff against the appellant, the appellant was established to be a tortfeasor liable in respect of the damage to the plaintiff within the meaning of s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act.
15 The respondent also relied upon the ancillary point that it would wish to argue that if there was no res judicata then the question of contributory negligence remained open in the contribution proceedings. Again, this question arose out of the third ground of contention, and it was fully argued on the hearing of the appeal. It has been seen this was not a case where, because the appellant's liability lay in breach of contract, no apportionment against the plaintiff was available on the ground of contributory negligence: cfAstley v Austrust Ltd (1999) 197 CLR 1, and see the Contributory Negligence Act, s 3A. Here, the majority held that the question of contributory negligence was foreclosed by the consent judgment in favour of the plaintiff against the appellant.
16 But in any event, the Court in this appeal considered the question of contributory negligence and unanimously held that if it was open to reduce the base figure in relation to which a contribution might be sought by the appellant from the respondent on the ground of contributory negligence, contrary to the view of the majority, then no contributory negligence on the part of the plaintiff, Ms Stone, was found by her Honour the trial Judge or established by the facts found by her.
(Page 8)
- Again, therefore, this was a question fully ventilated on the hearing of the appeal and provided no ground for the application to reopen the hearing.
17 It was for those reasons that, on the hearing of the application, it was dismissed, and the final orders to which we have referred were made.
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