Royal v Alcoa of Australia Limited [2004] WADC 31 (5 March 2004)

Last Updated: 28 November 2006

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH

CITATION : ROYAL -v- ALCOA OF AUSTRALIA LIMITED [2004] WADC 31

CORAM : MULLER DCJ

HEARD : 23 FEBRUARY 2004

DELIVERED : 5 MARCH 2004

FILE NO/S : CIV 2514 of 2002

BETWEEN : DARREN ROYAL

Plaintiff

AND

ALCOA OF AUSTRALIA LIMITED (ACN 004 879 298)

Defendant

Catchwords:
Application for leave to amend defence - Section 175(1) Workers' Compensation and Rehabilitation Act - Whether proposed defence consistent with provisions of the Act

Legislation:
Workers' Compensation and Rehabilitation Act 1981

Result:
Appeal dismissed

Representation:

Counsel:

Plaintiff : Mr B L Nugawela

Defendant : Mr J P Allan

Solicitors:

Plaintiff : Friedman Lurie Singh

Defendant : Clayton Utz

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

Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32

The State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323

Case(s) also cited:

Nil

1 MULLER DCJ: This is an appeal against a decision by the Registrar giving the respondent/defendant leave to amend its defence. The decision by the Registrar is challenged on two grounds: first, it is submitted that the Registrar was wrong in law in allowing the defendant to plead a defence under s 175 of the Workers' Compensation and Rehabilitation Act 1981; second, it is said that there was undue delay by the defendant in applying for leave to amend its defence and that no adequate explanation for such delay has been given.
2 The defendant operated an alumina refinery in Kwinana. On 1 September 2000 it entered into a contract with G & F Beltline Services to provide conveyor belt splicing, repair and inspection services and pulley lagging services at the refinery in Kwinana. The appellant/plaintiff was employed by G & F Beltline. On 19 June 2001 it is alleged that the defendant was informed by G & F Beltline that belt repair work was required on the B4 North East conveyor at the refinery. This was one of two conveyors on site. A maintenance work order was issued by the defendant for work on this conveyor and the plaintiff was assigned the task in hand. The defendant alleges that contrary to the maintenance work order the plaintiff began work on the other conveyor described as the B4 North West conveyor. It was while he was working on this conveyor that the accident happened and he was injured. The plaintiff claims that his injuries were caused by the negligence of the defendant. In its defence filed on 11 October 2002 the defendant denied it had been negligent. The pleadings were closed and a pre-trial conference was scheduled for 1 July 2003. On 19 June 2003, approximately one week before the pre-trial conference, the solicitors acting for the defendant wrote to the plaintiff's solicitors enclosing a minute of a proposed amended defence and requested their consent to the amendments. The plaintiff refused his consent.
3 In the light of this refusal an application was made by the defendant on 28 August 2003 to the Registrar for leave to amend its defence. For reasons that I need not go into the learned Registrar dismissed the defendant's initial application but granted leave for the defendant to reapply to amend its defence. The defendant reapplied for leave to amend on 9 September 2003. The application to amend was allowed and forms the subject of this appeal.
4 In its application to amend its defence the defendant sought to introduce an allegation that pursuant to s 175 of the Workers' Compensation and Rehabilitation Act 1981 the defendant and G & F Beltline was each deemed to be the plaintiff's employers for the purposes of the Act. Section 175(1) of the Workers' Compensation and Rehabilitation Act 1981 provides as follows:

"Where a person in this section, referred to as the principal, contracts with another person, in this section referred to as the contractor, for the execution of any work by or under the contractor and in the execution of the work a worker is employed by the contractor, both the principal and the contractor are for the purposes of this Act deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor, if he were the sole employer, would be liable to pay under this Act."

5 Counsel for the plaintiff has opposed the amendment of the defence by the introduction of this pleading on the ground that the execution of the work undertaken by the plaintiff at the time of the accident was, on the defendant's own admission, contrary to the maintenance work order made by the defendant. In short the plaintiff alleges that s 175(1) has no application in this situation where the plaintiff was injured in the execution of work falling outside the contract between the principal and the contractor.
6 The proposed amendment, if allowed, may have a significant impact on these proceedings. It appears that the plaintiff has already been compensated by G & F Beltline for his injuries but has failed to comply with s 93D(2) of the Workers' Compensation and Rehabilitation Act 1981 before commencing proceedings. Given the significance of the proposed amendment I am required to consider whether the proposed defence is fairly arguable and what prejudice, if any, it will have on the plaintiff if the amendment is allowed and on the defendant if it is refused. The State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146. Considerations of case flow management are relevant but certainly not critical where, as in this case, no adjournment or variation of trial dates will follow the amendment.
7 In support of its application to amend the defence by introducing s 175(1) of the Act the defendant has relied on the affidavit of one Paul Nicholas Buch sworn on 8 September 2003. In this affidavit the deponent, an employee of the defendant familiar with the refinery operations at Kwinana, asserts that the two conveyors at the site where the accident occurred were an integral part of the refining process at the Kwinana Refinery and required periodic maintenance and repair which, if not carried out, would lead to their failure and the loss of approximately 50 per cent of the Refinery's bauxite ore storage and handling capacity.
8 The first question I have to decide is whether the proposed amendment discloses a valid defence because a party cannot be given leave to make a defective amendment. Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32 at 38. If, as the defendant has admitted in par 3(d) of its proposed amended defence, the plaintiff was working on the B4 North West conveyor contrary to the maintenance work order issued by the defendant which specifically related to the B4 North East conveyor the question does arise whether s 175(1) of the Workers' Compensation and Rehabilitation Act 1981 has any application. Counsel for the plaintiff has submitted that the allegations in par 3(d) and 7A(iii) of the defendant's proposed amended defence are inconsistent with a defence under s 175(1) of the Act. I believed there might have been merit in that submission and at the conclusion of the appeal I invited counsel for the plaintiff to consider an amendment to either one or both these provisions. The defendant has now filed a further minute of proposed amended defence in which par 3(d) remains unaltered but par 7A(iii) has been amended by the deletion of the reference to the B4 North East conveyor. As I understand the position the defendant still maintains that the plaintiff was undertaking work contrary to the maintenance work order but that the work he did on B4 North West conveyor, though not specifically authorised by the maintenance work order, still fell within the scope of the contract between the defendant and G & F Beltline. The proposed amendment has been criticised by counsel for the plaintiff who contends that the proposed pleading is still deficient because there is no express assertion that the plaintiff was involved in the execution of work that was the subject of the contract between the defendant and G & F Beltline when he was injured.
9 I am unable to reconcile the conflict between the parties. In his statement of claim the plaintiff alleges that he went to the defendant's refinery to repair conveyor belt B4 North East but was asked by the defendant's employees to work on conveyor belt B4 North West. The defendant by implication denies having made that request. This is a dispute which can only be resolved by evidence. Whatever the situation might have been I do not believe the defendant's proposed pleadings are inconsistent with s 175(1) of the Act. In my view the interpretation placed on this provision by counsel for the plaintiff is simply too narrow. The contract between the defendant and G & F Beltline related to a number of different sites and clearly covered the repair and inspection of all conveyor belts on those sites. Paragraph 2 of the agreement between the defendant and G & F Beltline specifies that the defendant could modify the contractual duties of G & F Beltline by a direction in writing. The question whether the maintenance work order constituted such a modification as to take the work the plaintiff was doing outside the scope of the contract between the defendant and G & F Beltline is a matter of evidence. As I see it the position is clear enough. The contract between the defendant and G & F Beltline related to both conveyors at the refinery. The plaintiff was on the site to work on a conveyor as contemplated by the contract. That was clearly the intention of both the plaintiff and the defendant. Giving s 175 a broader interpretation than that suggested by counsel for the plaintiff I believe it is strongly arguable that the plaintiff was injured while executing work contemplated by that contract even if the work fell outside the scope of the maintenance work order. I find that the pleading sought to be introduced by the defendant's proposed amendment is certainly an arguable proposition and, in my view, the defendant should not be shut out from litigating an issue which is fairly arguable. The State of Queensland & Anor v JL Holdings Pty Ltd (supra). I do not believe the amendment will unduly prejudice the plaintiff. While the defendant has sought to introduce the amendment at a late stage in the proceedings the plaintiff will still have adequate time and opportunity to address the issue and any monetary prejudice he suffers as a consequence of the late amendment can be addressed by an appropriate award of costs.
10 The other ground upon which the application is opposed by the plaintiff is based upon an inadequate explanation by the defendant for the delay in making this application. The reasons for this delay are explained in the affidavit of Jerome Patrick Allan, a solicitor employed by the firm representing the defendant, sworn on 9 September 2003. It is clear from this affidavit that the initial failure to plead a defence under s 175 of the Workers' Compensation and Rehabilitation Act 1981 was simply due to the solicitor's unfamiliarity at the time with this legislative provision and its possible application to the facts in this case. It is only when the defendant's solicitor undertook a review of the discovery and pleadings in the action in the middle of June 2003 that the oversight was discovered and the necessary steps taken to correct the situation. The defendant carries the burden of satisfying the Court that it should grant leave to allow the amendment in the light of case flow management and principles and the possibility of prejudice to the plaintiff. Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 at 336. While, in this case there has been considerable delay in making the application I am satisfied by the explanation given for that delay and, like the learned Registrar, I believe that any prejudice suffered by the plaintiff can be redressed by an appropriate award of costs.
11 I would dismiss the appeal.