Andonovski v Park-Tec Engineering Pty Ltd & Anor; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd

EX TEMPORE Judgment 1This morning is day five of the hearing of two claims brought by the plaintiff, Mr Andonovski, in respect of personal injury suffered by him. In the first claim his personal injury was suffered as long ago as 11 March 2004, and in the second claim as long ago as 28 May 2004. 2The first claim is brought in respect of an industrial accident. Those proceedings have had a very chequered history, in as much as they have been the subject of several difficult and closely contested interlocutory proceedings. One of those proceedings required the attention of the New South Wales Court of Appeal, who delivered judgment in respect of that matter on 27 October 2009 after a hearing, which had taken place on 9 September 2009. 3The second claim relates to a motor vehicle accident and given its proximity in time to the industrial accident its fate has been somewhat tied to the outcome of the industrial accident claim, in terms of the need to have both claims determined together in order that any liability for specific injury suffered by Mr Andonovski can be properly apportioned to each separate cause of action. I will put the motor vehicle claim to one side for the moment. 4A central issue from the start of the industrial accident case was the identity of Mr Andonovski's employer. He suffered injury at the premises of Park-Tec Engineering in March 2004 when he fell from a platform he was required to mount in order to place cardboard for recycling into a bin. Park-Tec were at that time part of the Barbecues Galore group of companies. Barbecues Galore is the second defendant. When I say it was part of a group of companies I use that in a general sense; the evidence before me does not yet enable me to decide whether strictly speaking it was a subsidiary of Barbecues Galore at that time. Doubtless further evidence will be led at some time in regard to that matter. 5The central issue, however, which emerged early in the proceedings was the question, as I have said, of the identity of Mr Andonovski's employer. Park-Tec initially asserted that it was the employer. Had that been the case then any damages recoverable by Mr Andonovski for the consequences of his accident would have been assessed according to the truncated entitlement available under the provisions of Part 5 of the Workers Compensation Act 1987 (NSW), rather than the modified common law damages available under Part 2 of the Civil Liability Act 2002 (NSW) 6This central issue resulted in a number of different applications in the District Court, as I have said. Eventually his Honour Judge Johnstone determined as a separate question under the provisions of Part 28 of the Uniform Civil Procedure Rules 2005 (NSW) that Park-Tec was the employer. Mr Andonovski was given leave to appeal and his appeal was successful: Vlado Adonovski v Park Tec Engineering Pty Ltd [2009] NSWCA 305. The Court of Appeal reversed the learned primary judge's finding and instead found that Barbecues Galore employed Mr Andonovski. 7Sackville AJA, Tobias and Young JJA agreeing, gave the leading judgment. At [77] his Honour said: It is true that, on the finding I have made, [Mr Andonovski] was employed by Barbeques Galore. However, the evidence is insufficient to enable a finding to be made as to the identity of the employer of the other employees who worked at the Premises and [learned senior counsel for Mr Andonovski] did not suggest otherwise. 8I will repeat myself again; from the start it was always clear, as is so common in these industrial accident cases, that the identity of the employer was likely to be a central issue. That question was conclusively determined for present purposes by the decision of the Court of Appeal. 9It is also clear that in a case like this liability questions, whether concerning the primary liability of a defendant to a plaintiff or questions of apportionment between a non-employer tortfeasor and an employer, turn on nice questions of fact including whether the plaintiff worked under the supervision of a host employer or whether, on the contrary, notwithstanding that the work was done on premises occupied by the non-employer, and the work done for its benefit, the employer continued to exert actual control and supervision of the worker's day to day work activities. It seems to me it must have been obvious to all of the parties that although the employment status of Mr Andonovski had been conclusively determined, the Court of Appeal, by reference to the statement made by Sackville AJA I have quoted, was careful to leave open the question of the status of other persons who worked at the premises including those who might have worked there in a supervisory capacity. 10The case has some unusual features inasmuch as at the time Park-Tec was maintaining that Mr Andonovski was its direct employee it acknowledged through the evidence it led before Judge Johnstone that given the relationship between it and Barbecues Galore, a number of paper matters - and I use that expression in accordance with the language of Handley JA in Pitcher v Langford (1991) 23 NSWLR 142 - would indicate that Barbecues Galore was the employer. Indeed, it has been drawn to my attention that before Judge Johnstone Park-Tec read an affidavit from its former general manager, a Mr Loucas Nicola, which stated as follows: The Barbecues Ltd Group has a number of wholly owned subsidiary companies of which Park-Tec Engineering is one. There is a central pay office staffed and run by Barbecues Galore Ltd employees, but this is purely for the sake of administrative convenience and in no way reflects the true identity of the employer of workers employed by Park-Tec Engineering Pty Ltd. 11Two things, therefore, must have been obvious to anyone schooled in the law of torts affecting this area following the decision of the Court of Appeal. The first was who employed the other persons working at Park-Tec's premises and whether they supervised the plaintiff in his work. The second was that if one looked at the paper matters, one would find as much documentary evidence as one might wish to gather implicating Barbecues Galore as that employer. 12I have made these long introductory remarks because I need now to deal with an application for an adjournment that has been made on behalf of Park-Tec this morning. The plaintiff was about to close his case but for this application. This week I have heard evidence from the plaintiff. I have admitted many documents and I have heard concurrent evidence from four orthopaedic surgeons and separately from three psychiatrists. It must be said that the hearing is at a very advanced stage. Indeed when it was transferred from the District Court of New South Wales by order of the Registrar on 12 April 2013, the parties consented to the matter being listed for hearing on 9 December 2013 with an estimate of five days, and since then the matter has been extensively case managed by the Common Law Case Management Registrar, involving a number of directions hearings at which directions have been made for the preparation of all evidence on behalf of all parties. 13Ms Berberian of counsel has informed me from the bar table that evidence has been obtained during the course of this week pursuant to notices to produce issued by Barbecues Galore which suggests to her and those instructing her that the other persons employed at Park-Tec's premises were employed by Barbecues Galore. I interpolate, to me this is unsurprising given the background to the case that I have recounted so far. 14Apparently the way in which this matter arose in the present context is that on 21 November 2013 a notice to admit facts was served upon Barbecues Galore seeking an admission that the other persons employed at Park-Tec, including those who may be in a supervisory capacity to the plaintiff, were in fact employees of Barbecues Galore. Very promptly that notice was disputed by an appropriate notice on 27 November 2013 and at the same time an evidentiary statement, or a witness statement, was served from a Mr Nathan Hepburn who provided evidence very similar to the evidence provided by Mr Nicola back in 2007. 15 He said this (I read it at this stage only for the purpose of this application): The employees of Park-Tec Engineering had their wages drawn by Barbecues Galore which operated as the chequebook for Park-Tec Engineering. Barbecues Galore paid the wages and issued group certificates to the employees but all work that was done by these 62 employees was for Park-Tec Engineering at its premises as part of its own business operations. The funds loaned for payment of wages were then credited to Barbecues Galore's loan accounts. 16It is also clear, from the documentation he attached (being extracts from Park-Tec Engineering's financial records for the relevant period), that substantial amounts are shown in seven-figure sums in those accounts for matters relating to wages, salaries and other employee expenses. As I have said, that evidence is to the same effect, if it gets read in this case, to the evidence given by Mr Nicola so long ago. 17As I understand the application that was carefully and persuasively advanced by learned counsel, this material has come as some surprise and changes Park-Tec's understanding of the case. On the basis of it they desire to put on further evidence to attempt to establish that Barbecues Galore and not Park-Tec, consistently with the paper matters to which I have made reference, employed these employees including the supervisors of the plaintiff. 18At this stage Ms Berberian understandably is unsure of how much evidence and from whom will be required, because the material has been considered out of court hours, and her instructing solicitors have not yet been able to fully work out who all the witnesses might be, where they are and what it is they might say, Accordingly it is put that the matter will have to go over, if an adjournment is granted, at least until February to enable all those steps to be undertaken, and it seems to me that it would be imprudent for me to list the matter for hearing in February were that possible until I was satisfied that in fact the parties were ready to proceed. Accordingly the best that could be achieved if I acceded to the application for an adjournment would be to list it for directions in February and then to fix a date for further hearing or dates for further hearing some longer way down the track. 19There are a number of considerations that must be borne in mind in considering applications for an adjournment. I should record that each of the defendants and the plaintiff strongly oppose the application made. Ms Berberian of course refers me to the efficiency provisions of ss56 to 60 Civil Procedure Act 2005 (NSW) and points out that I must consider and decide her application by having regard to the overriding purpose expressed in s56 of the Act. 20She properly emphasises in any event that in accordance with s58 the guiding principle must always be the dictates of justice, and in that regard she with great persuasion submits that if I refuse the application her client is likely to be substantially prejudiced by not being in a position to lead evidence to make good its case about the employment status of others before me in the current hearing. 21Ms Welsh of counsel who appears with Mr Sciglitano for the plaintiff has reminded me that in terms of deciding the question I need to bear firmly in mind the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175. That decision, of course, establishes that case management considerations are a very significant factor to be brought into account in exercising the court's procedural powers. Indeed the High Court has recently remarked that generally speaking case management considerations are likely to march in complete harmony with the dictates of justice given the importance of adjectival law in the administration of justice. 22It seems to me that there are a number of factors arising out of Aon that I need to bear in mind. The first is that, with respect, no satisfactory explanation has been provided for the delay in gathering the relevant evidence. I understand and I accept that the documents were produced during the course of the trial, but for the reasons I have given in my introduction the issue should have been obvious from the time the Court of Appeal reversed the decision of Judge Johnstone, four years ago. Secondly, although costs are not offered, and indeed it was argued before me that it could not be shown that any party would have wasted costs in this case because the matter could continue part heard before me and the hearing time used this week would be utilised in terms when I came to make my final decision after the adjournment. I do not agree with that submission. I think costs are always wasted if a case is adjourned, indeed additional costs must always be incurred by the parties. However in modern thinking that consideration of whether costs are offered is subsidiary given it is now clearly recognised that costs are not a panacea for procedural failings. Indeed to the extent to which Bowen LJ indicated otherwise in Cropper v Smith (1884) 26 Ch D 700 that is no longer the prevailing thought in Australian jurisprudence. 23Yet another matter is, of course, the displacement of other cases. This case, as I have said, was set down as long ago as April for five days. Some other case would have been allocated these five days had this case not been set down; indeed it is already obvious that this case will extend beyond the five days and doubtless other cases that could have been allocated to me have been displaced next week and allocated to other judges. If I adjourn the case for several more days, some time in the future then cases that could have been listed during those days will also be displaced. The allocation of public, judicial resources is a very important consideration which tells against acceding to the application made in this case. 24Even before the advent of the Civil Procedure Act and the realisation of the significance of the overriding purpose to which it gives effect, it was recognised that prejudice to other parties caused by adjournments could not always be measured in terms of money and time. Lord Griffiths has observed in Ketteman v Hansel Properties Ltd [1988] 1 All ER 38 that emotional distress and vexation of mind on the part of litigants cannot be made good by palliative costs orders. That is a consideration which must have some weight here. 25On Thursday afternoon I heard evidence from three psychiatrists, as I have said, including a psychiatrist called on behalf of Park-Tec, all of whom indicated that a factor in this case was the effect of the litigation upon the plaintiff. They all agreed that the plaintiff has probably suffered a depressive reaction to his physical injuries, at least if I accept in due course that he has physical injuries. Part of that psychiatric condition, as I have said, may be the effect of this long-running litigation. 26The long delay in the resolution of Mr Andonovski's litigation cannot be laid solely at the feet of the first defendant and I do not do so. However, that does not detract from the fact that it has been a very long time and in a case such as this it is in the interests of all parties, it is in the interests of the administration of justice and it is in the interests of the community that this litigation be resolved sooner rather than later. 27In that regard, although the personal availability of the judge may not be a particularly significant factor, I have told the parties that my roster for next year means effectively I would not be able to allocate four or five more days to this case until May or June of 2014, so that any further delay caused by an adjournment must necessarily be very significant. 28It will be obvious to all having heard me so far that I am not going to grant the adjournment, and I will make that order refusing the application in due course. However, I do wish to make a couple of other comments. One of those comments relates to the position of the motor vehicle defendants represented by Mr O'Keefe of counsel. As I have said, they have been married to the fortunes of the industrial accident case. They have admitted breach of duty of care but dispute liability on the basis that they say no appreciable injury was suffered in the motor vehicle accident. They have been drawn along for nearly ten years with this other litigation and that is a factor which, I think, is also of some, if not determinative, significance. 29I accept, as Mr Polin of counsel submitted, that nothing has really changed in this case since 2007, and in my view if there is prejudice to the first defendant that prejudice was capable of being anticipated and prepared for sooner than 21 November 2013. Having said that I will permit, obviously, the first defendant to call and lead evidence available to it in admissible form in support of the case which it wishes to make during the course of the current hearing, always assuming of course that the evidence sought to be led is relevant having regard to the issues identified and established by the pleadings as they exist. 30For those reasons the application for an adjournment is refused.