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Zerjavic v Chevron Australia Pty Ltd

Zerjavic v Chevron Australia Pty Ltd

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Case Copied 3 April 2020 78 min read

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ZERJAVIC -v- CHEVRON AUSTRALIA PTY LTD [2020] WASCA 40
CORAM:   BUSS P
MURPHY JA
VAUGHAN JA

HEARD:   24 JANUARY 2020
DELIVERED          :   3 APRIL 2020
FILE NO/S:   CACV 22 of 2019
BETWEEN:   ZELJKO ZERJAVIC
Appellant
AND
CHEVRON AUSTRALIA PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
File Number            :   CIV 680 of 2017

Catchwords:

Self-represented litigant - Whether self-represented litigant should be permitted to advance new case on appeal - Whether primary judge obliged as a matter of procedural fairness to explain 'responsibility' of calling expert evidence - Turns on own facts

Factual findings - Alleged error in fact by primary judge - Role of appellate court in conducting review of factual findings by primary judge - Whether primary judge correct in finding that the respondent had no involvement in actions and decisions relating to the appellant - Turns on own facts

Refusal to admit evidence - Whether letter business record under s 79B of the Evidence Act 1906 (WA) - Whether primary judge obliged as a matter of procedural fairness to inform appellant of entitlement to issue subpoena to obtain evidence - Turns on own facts

Alleged failure to find a duty of care based on statutory provisions as to occupational health and safety of persons engaged in petroleum operations or geothermal energy operations - New case advanced on appeal - Claim for new trial - Whether new trial in the interests of justice - Turns on own facts

Legislation:

Mental Health Act 1996 (WA), s 29, s 34, s 43
Petroleum and Geothermal Energy Resources (Management of Safety) Regulations 2010 (WA) reg 5, reg 7, reg 9, reg 10, reg 17, reg 44, reg 45
Petroleum and Geothermal Energy Resources Act 1967 (WA), sch 1 cl 1, cl 7, cl 13

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	K Robson
Respondent	:	G J Pynt

Solicitors:

Appellant	:	Evangel Legal
Respondent	:	Jackson McDonald

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1
Banque Commerciale SA, en liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Bauskis v Liew [2013] NSWCA 297
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Byrne v Australia Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Child and Adolescent Health Service v Mabior [2019] WASCA 151
Cicek v Estate of the Late Mark Solomon [2014] NSWCA 278
Coal and Allied Operations Pty Ltd v Australia Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Crampton v R [2000] HCA 60; (2000) 206 CLR 161
Dairy Farmers Co-operative Milk…

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: [2020] WASCA 40
Decision Date: 3 APRIL 2020

CaseChat Overview and Summary

In the case of Zerjavic v Chevron Australia Pty Ltd, the appellant, Zerjavic, represented himself in an action against Chevron Australia Pty Ltd, the respondent, concerning issues of occupational health and safety in relation to petroleum operations. The dispute was heard and determined by the Supreme Court of Western Australia. The appellant, dissatisfied with the outcome, appealed to the Court of Appeal.

The legal issues before the Court of Appeal involved whether the appellant, as a self-represented litigant, should be permitted to advance a new case on appeal, and if the primary judge was obliged to explain the responsibility of calling expert evidence. The Court also needed to consider whether the primary judge made any factual errors, the role of the appellate court in reviewing the primary judge's factual findings, and whether the primary judge correctly found that the respondent had no involvement in actions and decisions relating to the appellant. Additionally, the Court examined the refusal to admit evidence, whether a particular letter was a business record under the Evidence Act 1906 (WA), and if the primary judge was obliged to inform the appellant of his entitlement to issue a subpoena to obtain evidence.

The Court of Appeal held that the appellant was not entitled to advance a new case on appeal, as it was neither appropriate nor in the interests of justice to do so. The Court found no error in the primary judge's approach to the calling of expert evidence and determined that the primary judge's factual findings were not in error. The Court emphasised that the role of the appellate court in reviewing factual findings is limited and that such findings should not be disturbed unless there is a clear error. The Court further concluded that the primary judge was correct in finding that the respondent had no involvement in the actions and decisions relating to the appellant. The Court also held that the letter in question was not a business record under the Evidence Act and found no procedural unfairness in the primary judge's failure to inform the appellant of his right to issue a subpoena. Finally, the Court found no basis to order a new trial.

The Court of Appeal dismissed the appeal and made no order as to costs.

Orders