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[2016] QCA 337
General information, not legal advice.
Court of Appeal (Qld)
2016-12-14
Margaret McMurdo P and Philippides JA and Jackson, J, Separate reasons for judgment of each member of the Court, each concurring, as to the orders made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Day v Woolworths Ltd & Ors [2016] QCA 337
PARTIES: OLGA DAY (applicant) v WOOLWORTHS LIMITED ACN 000 014 675 (first respondent) CPM AUSTRALIA PTY LTD ACN 063 244 824 (second respondent) RETAIL ACTIVATION PTY LTD ACN 111 852 129 (third respondent)
FILE NOS: Appeal No 3950 of 2016 / DC No 224 of 2016
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Civil)
ORIGINATING COURT: District Court at Brisbane – [2016] QDC 81
DELIVERED ON: 14 December 2016
DELIVERED AT: Brisbane
HEARING DATE: 11 October 2016
JUDGES: Margaret McMurdo P and Philippides JA and Jackson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Leave to appeal is granted on the question whether the applicant’s undertaking not to communicate with the directors or employees of the first respondent should be released.The appeal is allowed.The applicant is released from the undertaking.Otherwise leave to appeal is refused.No order as to costs.
CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – PERSONAL INJURY OR FATAL ACCIDENTS PROCEEDINGS – OTHER MATTERS – where the first respondent applied to the District Court to have the date of the compulsory conference set and for an order that the applicant limit her communications with the first respondent to its solicitors – where the applicant applied to the District Court for a range of procedural orders, including as to inspection of the premises and seeking responses to requests for information made under s 27 of Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) – where the District Court set a date for the compulsory conference, ordered that the first respondent provide particular information requested and otherwise dismissed the applications – where the applicant applied to set aside the orders and to obtain the orders sought by her application to the District Court – where the pre-court procedures under PIPA were concluded at the time of the appeal – whether s 27 of PIPA created a continuing right to ask for information after a court proceeding was started – whether the District Court had power to order an inspection of property before a court proceeding claiming damages was commenced, either under the Uniform Civil Procedure Rules 1999 (Qld) or PIPA – whether leave to appeal should be granted / PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – UNDERTAKING IN COURSE OF LEGAL PROCEEDING – where the applicant gave an undertaking to the District Court not to communicate with the parties except through their solicitors – whether the undertaking should be released now that the PIPA pre-court processes were concluded and the applicant had started a court proceeding / Corporations Act 2001 (Cth), s 180, s 181, s 1317H, s 1317J / Personal Injuries Proceedings Act 2002 (Qld), s 14, s 27, s 35, s 36 / Uniform Civil Procedure Rules 1999 (Qld), r 3, r 8, r 250 / Work Health and Safety Act 2011 (Qld), s 5, s 19, s 27, s 267 / Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited / Angus v Conelius [2008] 1 Qd R 101; [2007] QCA 190, considered / Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27, cited / Berger v Willowdale AMC (1983) 145 DLR (3d) 247; [1983] CanLII 1820, cited / Cleary v Rinaudo (2013) 8 ACTLR 71; (2013) 278 FLR 231; [2013] ACTCA 32, considered / Coles Group Limited v Costin [2015] QCA 140, cited / Jefferson-Taite v Lewis (2016) 310 FLR 136; [2016] ACTCA 19, cited / McCracken v Phoenix Constructions (Qld) Pty Ltd [2013] 2 Qd R 27; [2012] QCA 129, cited / National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386; [1991] VicRp 31, cited / Yuille v B & B Fisheries (Leigh) Ltd [1958] 2 Ll LL Rep 596, distinguished
COUNSEL: The applicant appeared on her own behalf / G Diehm QC, with G O'Driscoll, for the first respondent / No appearance for the second and third respondents
SOLICITORS: The applicant appeared on her own behalf / DLA Piper Australia for the first respondent / No appearance for the second and third respondents
MARGARET McMURDO P: I agree with Jackson J’s reasons for granting leave to appeal, limited to the question of whether the applicant’s undertaking not to communicate with the directors or employees of the first respondent should be released.
I also agree with the orders his Honour proposes.
PHILIPPIDES JA: I agree with the comprehensive reasons for judgment of Jackson J and the orders proposed by his Honour.
JACKSON J: This proceeding is brought as an appeal from orders made by the District Court under the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”).
Leave to appeal
Under s 118(2) of the District Court of Queensland Act 1967 (Qld) the applicant only has a right of appeal from the orders made if they related to a claim for, or relating to, property that had a value equal to or more than the Magistrates Court’s jurisdictional limit.1
At the time the orders were made there was no claim in the District Court other than the applications on which the orders were made. The purported appeal is not from a judgment that relates to a claim for or relating to any property of a value more than the Magistrates Court’s jurisdictional limit of $150,000.2
Accordingly, the applicant applied for leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld).
As between the applicant and the second and third respondents the appeal has been compromised. The questions that remain lie between the applicant and the first respondent.
Undisputed facts
The applicant alleges that in December 2014 she slipped on a piece of shallot on the floor of a supermarket operated by the first defendant near a temporary promotional stand being operated by the second or third defendants.
On 22 April 2015, the applicant gave notice of claim under PIPA to the first respondent.
On 21 May 2015, the first respondent gave notice under s 20 of PIPA. Liability was denied.
On 14 October 2015, the applicant asked the first respondent for information relying on s 27 of PIPA and requested that the information be verified by statutory declaration under s 27(3) of PIPA.
On 19 October 2015, the first respondent refused to make the requested disclosure.
On 19 January 2016, the first respondent filed an originating application for orders pursuant to s 36(5) of PIPA that:
the court fix the time and place for the compulsory conference required under s 36(1) of PIPA;
the applicant and her representatives limit their communications with the first respondent to the solicitors representing the first respondent.
On 5 February 2016, the District Court ordered that the application be amended to seek an order to dispense with the compulsory conference.
On 9 or 10 February 2016, the applicant purported to ask for further information relying on s 27 of PIPA and requested that the information be verified by statutory declaration under s 27(3). The letter containing the request was specifically personally addressed to the first respondent’s chair of directors, general manager and chief executive officer, company secretary and chief legal secretary, and chief financial officer, as well as the first respondent.
On 15 February 2016, the applicant filed an application seeking a range of orders, summarised as:
an order requiring the first respondent to permit the applicant, her representatives and a safety expert to physically inspect the supermarket;
an order for the first respondent to comply with the disclosure requests of 14 October 2015 and 10 February 2016;
an order that the responses of the second and third respondents be verified by statutory declaration;
an order adding two directors and the company secretary of the first respondent as respondents to the notice of claim under s 14(5) of PIPA;
an order delaying the compulsory conference under s 36(1) of PIPA until the completion of a number of specified steps;
an order dismissing the first respondent’s originating application as an abuse of process under r 384A of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”);
an order that the first respondent and its directors and “senior officers” disclose any conflict of interest with the partners of the first respondent’s solicitors;
an order that the notice of claim be further amended with further particulars of the third respondent’s negligence; and
an order for indemnity costs.
On 22 February 2016, the District Court heard both the applicant’s application and the first respondent’s originating application. The applicant relied on three affidavits and made submissions in writing and orally. The submissions in writing were lengthy.
On 23 March 2016, the District Court ordered that:
the date for the compulsory conference be set at 22 April 2016;
the first respondent provide the information requested by questions 16 to 19 and 21 to 25 of the 14 October 2015 request and a floorplan of the area in the vicinity of the fall showing the location and direction of the cameras as they applied on the day of the fall;
the third respondent provide the information requested by question 5 of a request made on 13 August 2015; and
otherwise all applications be dismissed.
In substance, the applicant applies to set aside all of the orders made, with the exception of the orders for the first respondent and the third respondent to provide information, and seeks to have the orders sought by her earlier application made.
Further evidence
In support of the appeal the applicant applies for leave to adduce further evidence.
The proposed additional evidence includes expert reports obtained by the applicant and a copy of a plan provided by the first respondent under the orders of 23 March 2016. The applicant submitted that they would support her appeal against the refusal of an order for an inspection. In my view, they would not assist in resolution of the questions to be decided by any appeal on that ground, for the reasons that follow.
The respondent sought leave to rely on an additional affidavit as well.
I would not give leave to adduce further evidence to either party, except to the extent that it shows that the compulsory conference set down by the orders of 23 March 2016 was held and that the applicant has started a proceeding against the respondents by a claim filed in and issued from the Supreme Court. Both facts are relevant to whether there would be any utility in giving leave to appeal.
Approach to the application
The proposed appeal is concerned only with the pre-court procedures under ch 2 pt 1 of PIPA. The applicant made many varied submissions. At times, they showed a lack of appreciation of the limitations of the litigation process and the extent of the responsibilities of parties to litigation.
It is neither practicable nor appropriate to deal with every argument the applicant sought to advance. Sometimes this must be the response of a court called on to deal with numerous submissions made by a litigant. It does not indicate that the other arguments have not been considered.
It is convenient to consider the grounds of appeal out of their numerical order.
Undertaking not to communicate with the first respondent’s directors – ground 5
At the hearing on 22 February 2016, the first respondent’s written submission stated that the applicant had corresponded with the directors of the first respondent and sought an order that the applicant restrict her correspondence to the appointed legal representative.
In oral argument, the first respondent did not elaborate on that submission. When the applicant made her submissions, the matter was touched on briefly at first but later the applicant said:
“I would like to ask him there is no need to make an order for communicating with the directors anymore, because I admit that I’m not going to communicate directly with directors of [the first respondent].”
Then the applicant confirmed that she gave an undertaking to her Honour not to communicate with the parties except through their lawyers (“undertaking not to communicate”).
On 7 March 2016, the applicant made further written submission under leave to do so given by her Honour on 22 February 2016. It was stated that the applicant withdrew the undertaking not to communicate with the directors and “reserve[d] her right” to contact the directors of the respondent companies. The applicant reverted to her earlier position that she sought an order that the first respondent’s application for an order that the applicant restrict her correspondence to the appointed legal representative be dismissed.
As it happened, the order made by her Honour was a dismissal of this part of the first respondent’s application. However, the reasons (but not the order made) record that the applicant undertook to exclusively communicate with the legal representatives of the parties and continued that the applicant “seemed to understand the gravity of her undertaking to the court and accepted her personal responsibility to comply with it.”3 An undertaking to the court is usually recorded or noted in the order itself.4
Either her Honour overlooked the applicant’s attempt to withdraw her undertaking or was not concerned by it. Either way, the effect of the order made by the primary Judge was a refusal of the applicant’s attempt to withdraw the undertaking. In my view, the applicant’s 7 March 2016 submission did not operate as a withdrawal of the undertaking given to the court. If the applicant wished to withdraw the undertaking, it was a matter for her to apply for leave to do so. Simply acting as though she had a right to do so in her further written submissions was not effective. However, for present purposes, the applicant’s 7 March 2016 submission may be treated as if it were an application for leave to withdraw the undertaking that was dismissed.
In view of the District Court’s decision, the applicant remains bound by the undertaking either until she is released from it by an order of the court or it otherwise expires. The form of the undertaking as discussed in open court and as recorded in the reasons of the primary Judge was not expressed to be perpetual, or until a stated time or other event. The basis for the first respondent’s application was that an order restricting the applicant’s correspondence to the appointed legal representatives could be made under s 36(5) of PIPA. That would not sustain a perpetual undertaking after PIPA’s processes are complete. Having regard to the context, it should be implied that the undertaking was given until further order.5
The compulsory conference was held in accordance with the order of the court below on 22 April 2016. As events have unfolded, the pre-court procedures under PIPA are complete unless some other order is made on this appeal that will revive them or there is a continuing obligation of the respondents that would sustain a further order under PIPA.
The first respondent submitted that s 27 of PIPA continues to operate to enable a claimant to ask for information about the circumstances of or the reasons for the incident after a court proceeding is started for the claim. It relied on Angus v Conelius6 for that conclusion. However that case considered provisions of the Motor Accident Insurance Act 1994 (Qld). There are differences in the statutory provisions involved under PIPA. Accordingly, in Cleary v Rinaudo7 it was held that provisions close in their text to those of PIPA did not operate to create a continuing right to ask for information under the equivalent to s 27 of PIPA after a court proceeding was started.8 Although I incline to think that the latter view is correct in the case of PIPA, it is not necessary to answer the question finally in this case.
For present purposes, it may be assumed that there was power under s 36(5) of PIPA to make an order that the applicant and her representatives limit their communications with the first respondent to the solicitors representing the first respondent. In my view, it was not appropriate in the circumstances to have made an order against or to have taken an undertaking from the applicant that would operate after the PIPA processes had apparently come to an end and the applicant had started a proceeding in respect of her claim. The applicant should now be released from the undertaking that she gave. This court has power on appeal to make that order.9
Abuse of process – ground 4
The substance of the applicant’s complaint on this ground is difficult to articulate because it is difficult to comprehend.
The first respondent’s application for an order to dispense with the compulsory conference was dismissed. In both written and oral submissions, the first respondent stated that it applied in the alternative for an order that the compulsory conference be set down. During oral submissions on 22 February 2016, the applicant stated that she would like to have the compulsory conference in April. The primary Judge found that the applicant was “willing” to participate in a compulsory conference.10
The only order made on this part of the first respondent’s application was that the date of the conference be fixed as 22 April 2016.
There is no evidential basis for a contention that the application to fix a time and place for the compulsory conference was made in circumstances amounting to abuse of process.11
There is also no reason to inquire whether the first respondent’s application for an order that the applicant and her representatives limit their communications with the first respondent to its solicitors was brought in circumstances that were an abuse of process. The order sought by the applicant was and is that the first respondent’s application be dismissed. On this part of the application, that was the effect of the order made by the court below, subject to the undertaking not to communicate that has already been dealt with. Success on the abuse of process ground of the appeal on this part of the application would not result in any different order.
In my view, this ground of the appeal would fail.
Physical inspection – ground 1
It was in dispute before the District Court whether there was power to order physical inspection of the first respondent’s premises for the purposes of the applicant’s claim under PIPA. The first respondent submitted that the court did not have that power before a proceeding claiming damages for personal injuries is started in court.
However, the first respondent did not rely on this point in its initial written outline of argument in opposition to the orders sought on the appeal. Nevertheless, where a question is raised on the face of a proceeding as to the power of a court to make an order sought, it is not just matter for the parties whether the court has power. It is a matter of law. The parties cannot by agreement confer power to make an order.
Accordingly, the question of the District Court’s power to make the order was raised by the court at the hearing of the appeal and supplementary submissions were provided on this question by both the first respondent and the applicant.
The primary Judge found that the District Court had power to make an order, relying on r 250.12
Rule 250 of the UCPR provides in part:
“(1)The court may make an order for the inspection, detention, custody or preservation of property if—
the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
inspection of the property is necessary for deciding an issue in a proceeding.” (emphasis added)
In my view, a claim under PIPA is not a “proceeding” within the meaning of r 250. That is because a “proceeding” under the UCPR starts when the originating process is issued by the court.13 An originating proceeding is either a claim, (originating) application, notice of appeal or notice of appeal subject to leave.14 Other forms of originating process are not provided for. By r 3 of the UCPR, unless the rules otherwise expressly provide, the rules apply to civil proceedings in, inter alia, the Supreme Court and the District Court. It is not expressly provided that they apply in the pre-court proceedings under PIPA. At the time when the orders were made by the District Court, there was no relevant proceeding in the District Court other than the application for the order itself. In my view, the power to make on order under r 250 depends on the existence of an originating proceeding for other relief. Otherwise, an order might be made even if no proceeding of that kind is ever started.
In addition, it is unlikely that an order interfering with the private law property rights of a party or non-party is impliedly authorised under r 250 in those circumstances, because of the principle of statutory interpretation now described as the “principle of legality”, as discussed in recent High Court authority.15
In further submissions provided to the District Court after the hearing on 22 February 2016, the first respondent submitted that there was “broad ancillary power” under s 36(5) of PIPA that could conceivably allow an order for inspection of the premises to be made.
Section 36(5) of PIPA provides:
“(5)The court may, on application by a party—
fix the time and place for the compulsory conference; or
dispense with the compulsory conference for good reason; or
dispense with the requirement to sign a certificate of readiness under section 37(1)(d) in cases of complexity including, for example, a case involving multiple respondents, non-party discovery and the need for further expert evidence;
and make any other orders the court considers appropriate in the circumstances.”
The power to make “any other orders” appears to be ancillary to the power to make an order about the compulsory conference. Nothing particularly suggests otherwise, or suggests that it includes a power to make an order that adds to the disclosure required by the duties imposed under ch 2 pt 1 div 1 or div 2. The unlikelihood of that construction of s 36(5) appears from the context of both the balance of s 36 and from s 35 of PIPA.
Section 35 provides as follows:
“(1)If a party fails to comply with a duty imposed under division 1 or 2, the court may, on the application of another party to whom the duty is owed, order the first party to take specified action to remedy the default within a time specified by the court.
The court may make consequential or ancillary orders, including orders as to costs.”
Section 35(1) of PIPA is an express power to order compliance with a duty under ch 2 pt 1 div 1 or div 2.
Under ch 2 pt 1 div 1 and div 2 of PIPA, there are duties of a respondent to provide information to a claimant. Under ch 2 pt 1 div 1, by s 20(3), if an offer or counter offer of settlement is made by a respondent it must be accompanied by “a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer.”
Further under ch 2 pt 1 div 2, s 27 of PIPA provides, in part:
“(1)A respondent must give a claimant—
copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim—
reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;
reports about the claimant’s medical condition or prospects of rehabilitation;
reports about the claimant’s cognitive, functional or vocational capacity; and
if asked by the claimant—
information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident; or
if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.”
These duties extend to information in a documentary form. There is no express obligation imposed upon a respondent to permit an inspection of other physical property.
As the text of s 35 provides, the power to make an order under s 35(1) is conditioned on a party’s failure to comply with a duty under ch 2 pt 1 div 1 or div 2. The ancillary power to make an order under s 35(2) is also conditioned on such a failure. No logical reason exists for the view that there would be power to make an unrelated order for the inspection of other property under s 35(2), as an ancillary power, but only where there has been non-compliance with a duty under ch 2 pt 1 div 1 or div 2.
Similarly, the ancillary power to make “any other orders” under s 36(5) is engaged where a party applies to fix or dispense with a compulsory conference under one of the prior subsections of s 36. There is no logical reason suggesting that it was intended that there would be power to order inspection of other property under s 36(5), but only where there is an application to fix or dispense with a compulsory conference.
The applicant did not identify any other statutory provision which would authorise the District Court as a court of statutory jurisdiction to make an inspection order for the purposes of a claim under PIPA. In my view, it is unlikely that there is such a power.
If that is correct, it would be unnecessary to consider whether the primary Judge’s exercise of discretion in refusing to make an order for inspection was attended by any apellable error.
In my view, this ground of appeal would likely fail because the District Court did not have power to make the order sought.
Adding the directors and secretary as respondents to the claim – ground 2
Section 14(1) of PIPA provides that a claimant may, within the time prescribed under a regulation, add someone else as a respondent by giving them part 1 of a notice of claim under s 9 and copies of other documents given to or received from any other respondent under PIPA. Section 14(2) provides that if the time prescribed for adding a respondent has ended the claimant may add someone as a respondent only with the agreement of the parties or the court’s leave.
The applicant’s application to add the first respondent’s two directors and company secretary as respondents to the claim was made under s 14(2).
A “claim” within the meaning of PIPA is a claim “for damages based on a liability for personal injury, whether the liability is based in tort or contract or in or on another form of action including breach of statutory duty…”.16
The primary Judge recorded that the ground of the applicant’s application for leave under s 14(2) was that the relevant officers or employees “knew and/or reasonably should have known that the hazardous conditions under their control could injure [her] but negligently failed to take or order appropriate actions to avoid the harm.”17
First, one of the directors was not in office until after the time of the alleged slip. Second, there is no evidence suggesting that any of the proposed additional respondents was involved in the management of the particular supermarket, or the design of the display or products in the supermarket, or the system of inspection or cleaning of the floors to keep them free from slippery objects.
In other words, there is no serious suggestion that any of the proposed respondents acted in a way that was individually the negligent cause of the applicant’s alleged fall and injury so as to be personally liable as a tortfeasor. There is only the generalised assertion that they acted or failed to act in some unspecified way that through an unspecified causal chain would have avoided the applicant’s alleged slip and fall.
Apart from the acts or omissions of someone who according to ordinary principles owes a personal duty of care in relation to an injury suffered by a plaintiff, there are some cases where a company director may be responsible personally in addition to the company’s liability for negligence for personal injury at common law. The applicant relies on Yuille v B & B Fisheries (Leigh) Ltd.18 But in that case the dangerous defects in the vessel’s equipment which caused the plaintiff’s injuries had been reported to the director, who failed to act on the report and knowing of it directed that the unseaworthy vessel put to sea. The director was personally involved in the relevant acts and omissions.
Similarly, in Berger v Willowdale AMC,19 the plaintiff slipped and fell on a patch of ice outside her workplace. The managing director was the effective day to day controller of all of the company’s operations at the premises. He personally knew of the hazard and had the power to order its removal but had not done so.
Underlying these cases is a complex and controversial discussion about the extent of the liability of the directors or office holders of a company for the torts of the company, including liability in negligence for personal injuries suffered by third parties.20 In my view, in this case, it is unnecessary to pursue those questions.
The applicant also relies on the general duties of a company officer or employee under ch 2D pt 1 of the Corporations Act 2001 (Cth) (“CA”), particularly ss 180(1) and 181(1), as a source of the liability that constitutes a claim within the meaning of PIPA. It is not necessary to consider other duties under ch 2D pt 1 of the CA in order to consider this point. Speaking generally, these statutory duties operate in addition to, but are historically recognisable as stemming from the equitable fiduciary obligations of a company director to the company. Those are not duties owed to a third party.
Under s 1317E(1) of the CA, ss 180(1) and 181(1) are civil penalty provisions. It follows that a contravenor is liable to a compensation order for loss suffered by the corporation under s 1317H(1). ASIC or the corporation may apply for an order to recover the corporation’s loss under s 1317J.
There is no statutory cause of action conferring a right to damages or compensation upon a third party in the plaintiff’s position for breach of an officer’s general duties under ss 180(1) or 181(1). There are two reasons. First, loss suffered by a third party such as the plaintiff is not loss “suffered by the corporation” within the meaning of s 1317H(1). Second, only ASIC or the corporation may apply for a compensation order under s 1317J. Properly construed, ss 180(1) and 181(1) do not create a private cause of action for damages for breach other than where an express provision of the CA provides for it. This view is consistent with McCracken v Phoenix Constructions (Qld) Pty Ltd.21
Lastly, the applicant relies on ss 19(2) and 27(1) of the Work Health and Safety Act 2011 (Qld) (“WHSA”).
Section 19(2) provides:
“(2)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”
Section 27(1) provides:
“(1)If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.”
Failure to comply with a health and safety duty including a duty under s 27(1) is an offence under ss 30 to 33 of the WHSA.
However, s 5(4) provides that:
“(4)A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.”
Further, s 267 provides:
“Except as provided in part 6 and part 7 and division 7, nothing in this Act is to be construed as—
conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act; or
conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or
affecting the extent (if any) to which a right of action arises, or civil proceedings may be taken, in relation to breaches of duties or obligations imposed under a regulation.”
Accordingly, the proposed respondents are not responsible under s 19(1) by virtue of their offices and any breach of s 27(1) as an officer does not confer a private law action for damages for contravention of that section.22
The applicant’s proposal to add the suggested respondents to the claim under PIPA is misconceived. There is no arguable basis in the facts of this case for their personal liability that would have justified a grant of leave to do so.
In my view this ground of appeal would fail.
Conflict of interest – ground 6
In the notice of appeal, ground 6 is headed “[f]ailure to make an order that [the first respondent’s] directors and senior officers … disclose any conflict of interest with the partners and employees of [the firm of] solicitors who are handling the majority of the [first respondent’s] matters”.
It is not clear what the applicant means by “conflict of interest” or how it might be relevant to her claim for damages for negligence.
The applicant objects to the way her claim has been handled by the solicitors for the first respondent. She seeks to generalise that there is some widespread manner of dealing with similar claims to which she also objects. It is not made clear how that has anything to do with the order she seeks as to disclosure of “conflicts of interest”.
The applicant seems to think it is relevant to her claim that she is a shareholder of the first respondent. In my view, as a matter of law, it is not. The relationship between the first respondent and its lawyers is also not a matter of legal relevance to the applicant’s claim under PIPA.
This ground of appeal would fail.
Further disclosure – ground 3
The applicant’s application for an order for compliance with her requests for information made on 14 October 2015 and 10 February 2016 was brought under s 35 of PIPA for an order that the first respondent “take specified action to remedy the default”. The court has power as well to make “consequential or ancillary orders”.
It is appropriate to separately consider the questions raised for the proposed appeal as to an order for compliance with the two requests.
14 October 2015 Request
Questions 1 to 4 and Questions 6 to 8 asked:
“1.Who exercised control over the Woolworths supermarket’s maintenance of the premises, including the maintenance of the floors? Please provide a copy of the Lease Agreement between Woolworths Limited, and/or Woolworths supermarket at Springfield and Mirvac Limited which was in place as at the date of the incident.
Did Mirvac Limited, the property owner of the Orion shopping centre, or Woolworths supermarket at Springfield engage cleaning contractors who were responsible for polishing the floor in the supermarket premises as at the date of the incident?
Please provide the name of the cleaning contractors who were responsible for cleaning the premises of Woolworths supermarket prior to the incident. Please also provide a copy of the cleaning contract in force on the date of the incident.
Is there a cleaning log maintained by the cleaning contractors noting the name of the cleaning products used, surfaces cleaned, when and by whom tasks were performed and what cleaning procedures were followed? If so, please provide a copy of such document.
…
When the Woolworths supermarket at Springfield did start its operations? Has the flooring material on the common walkway in the Woolworths supermarket at Springfield been replaced or changed since opening date? If so, please provide the particulars of the flooring material and the date of such replacement.
Please provide the particulars of the slip-resistant floor polish of the supermarket’s common walkway area and the log (schedule sheet) of performing slip-resistant treatment on the floor on the common walkway of the Woolworths supermarket prior to the incident or on 18 December 2014.
Did the Woolworths supermarket’s management organise and/or perform any slip resistance tests and assess the floor surface roughness of the common walkway prior to the incident on 18 December 2014? If so, please provide the particulars, including the testing results and the name of the entity and/or person/s who performed such tests.”
The first respondent’s answer to those questions was as follows:
“Questions 1 and 2Woolworths has already stated in the second statutory declaration of Gavin McMillan that Woolworths was responsible for the inspection and cleaning of the trading floor within the store. We have already informed you that the property owner of the shopping centre, Mirvac Limited, has no involvement in the matter. The questions which you have raised are therefore not relevant to the circumstances or reasons for the incident.
Questions 3 and 4We have already set out in the second statutory declaration of Gavin McMillan that the cleaning contractors are not involved in the state of the trading floor during trading hours and therefore not directly relevant to the circumstances of or reasons for the incident.
Questions 5 and 6We have already provided you with the details of the floor material on the store as at the date of the incident in our letter of 7 October 2016. The balance of the information sought is not relevant to the circumstances of or reasons for the incident.
Question 7The second statutory declaration of Gavin McMillan has already responded on the shallots displayed in the store. Woolworths has also acknowledged in our letter of 7 October 2015 that if the plaintiff establishes that she slipped on the shallot, the floor surface would be slippery. There is no suggestion in the material of any involvement of floor polish in either the circumstances or the reasons for the incident. Accordingly, the question is irrelevant.
Question 8We have already forwarded the test results held by Woolworths under cover of our letter of 7 October 2015. Woolworths has already acknowledged that if the plaintiff establishes the circumstances of the accident as she alleges, then the floor was slippery by virtue of the shallot. Accordingly, the question of slip resistance tests becomes superfluous.”
The primary Judge found that Questions 1 to 4 and 6 to 8 related to the “cleaning maintenance and testing of the floor, specifically [to] its slip resistant quality”, and that the first respondent has provided relevant information.23 As well, her Honour found that the first respondent did not deny that the presence of a shallot on the floor would present a slip risk and that in those circumstances the requests do not relate to a matter in issue.24
The applicant’s submissions were diffuse in advancing the need for an order for compliance in relation to Questions 1 to 4. First, she alluded to an “assessment of liability” on the part of the shopping centre owner, which is not relevant to the claim against the first respondent.
Second, she submitted that the information sought was relevant to the “state of the floor” at the relevant time. But having regard to the answers set out above, the answer would not have been about the circumstances of or reasons for the incident because the cleaning contractor was not responsible for the state of the floor during trading hours and no question will be raised that the floor surface was not slippery if the plaintiff slipped on a shallot as she alleges.
Questions 9 and 10 asked as follows:
“9.As the Respondents allege on the date of the incident a piece of a shallot fell from the customer’s trolley. Was such a spillage hazard stored in a safe manner, i.e. plastic wrapping? Does the supermarket’s shopping trolley design allow spillage hazards, including loose shallots, to fall from the customers trolleys at any time and at any place during their shopping in the supermarket’s premises?
Were the shallots on sale in the Woolworths supermarket at Springfield on the date of the incident, i.e. on 18 December 2014?”
The first respondent’s answer to those questions was:
“Questions 9 & 10 It is well established that there will be hazards on the floor of a retail store from time to time, as discussed by the High Court in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479. This was reinforced by the High Court most recently in Strong v Woolworths (2012) HCA 5. Therefore, the existence of the shallots, the nature of its packaging and the configuration of the shopping trolley is not directly relevant to either the circumstances of or reasons for the incident.”
The primary Judge found that the questions were adequately answered by the statutory declaration of Mr McMillan at paras 14 to 16.25 Those paragraphs stated:
“14.As at the time of the incident, the Woolworths Springfield store sold shallots in bunches. The packaging of the shallots was provided by the suppliers. The procedure for reducing spillage hazards was that staff were instructed to put the shallots on display on the shelves, and otherwise check for spills as detailed in paragraphs 2 and 3 of this Statutory Declaration. There is no documentation in respect to the packaging of the shallots.
At the time of the incident, the Woolworths Springfield store had a system for supervising, training and instructing staff in respect of spills and hazards on the floor as outlined in paragraphs 2 and 3 of this statutory declaration. This policy was communicated verbally by department managers and was not reduced to writing.
The Woolworths staff were not responsible for warning the claimant or other customers of spillage hazards and no specific staff were allocated to remove loose shallots on the floor after the incident on 18 December 2014.”
The applicant’s submission is that the declaration does not deal with “the design of the shopping trolleys and whether the shallots were on sale on the day of the incident.” However, para 14 of the declaration says that at the time the store sold shallots in bunches. There is no specific response to the question about the design of the trolleys, but in the light of the numerous and repeated questions asked by the applicant I would not give further consideration to this request.
Questions 13 and 14 asked as follows:
“13.Please identify the people and their relevant positions who were sweeping and supervising the sweeps of the supermarket floors, including but not limited to the apparently abbreviated names such as ‘LB’, ‘AD’, ‘GM’ – in accordance with the Weekly Sweeping Log of 21 December 2014.
How often were/are the Woolworths supermarket’s team members were travelling through the store at Springfield from their respective departments in order to identify any spills or debris on the floor? Were/are they equipped with any cleaning chemicals or cleaning utensils?”
The first respondent’s answers to those questions were:
“Question 13Woolworths has already identified the person who did the last sweep of the main aisles area before the incident. The identity of the persons who conducted the other sweeps is not directly relevant matter to either of the circumstances of or reasons for the incident.
Question 14This question has already been answered in paragraph 2 in the second affidavit of Gavin McMillan. The question of whether or not staff were equipped with any cleaning chemicals or cleaning utensils is not directly relevant to the circumstances of the accident as alleged in the plaintiff's notice of claim or Woolworths' section 20 response as it is not claimed by any party that the hazard was observed before the accident but there was a delay in removing the hazard whilst they sought cleaning chemicals or utensils.”
The primary Judge found that the questions were adequately answered by the statutory declaration of Mr McMillan at paras 2, 3 and 15.26 Those paragraphs stated:
“2.As at 18 December 2014, the Woolworths Springfield store had a system for the inspection of the supermarket floor for the presence of spillages and other debris. The system was comprised of staff undertaking visual inspections of the floors in their respective departments on a regular basis to identify and remove any spillages or other debris. There were no prescribed intervals for workers to undertake this task and the inspections would be undertaken at a number of intervals of differing time periods during the trading day. The persons undertaking the sweep would vary from day-to-day depending upon the roster for the particular department. After completing the sweep, the person would enter the time of the sweep in the sweeping log for the relevant department. The sweeping log was retained by store management at the end of each week. The relevant sweeping log for Main Aisles has been disclosed by Woolworths to the claimant. The sweeping logs for the week before and the week after 18 December 2014 are not directly relevant to the matters in issue in the claim.
As at 18 December 2014, the Woolworths Springfield store maintained a system for cleaning spillages and other debris on the floor. The system was comprised of staff picking up or cleaning up any spills or debris identified on the floor in their respective department or generally during their travels through the store. There were no set intervals for the cleaning as it was undertaken whenever spills or debris were observed. The persons undertaking the cleaning would vary from day-to-day depending upon the roster for the relevant department. The department managers supervised the policy insofar as they directed an employee to clean up a spill or other debris on the floor…
At the time of the incident, the Woolworths Springfield store had a system for supervising, training and instructing staff in respect of spills and hazards on the floor as outlined in paragraphs 2 and 3 of this statutory declaration. This policy was communicated verbally by department managers and was not reduced to writing.”
The applicant submits that the questions were not answered and makes a number of additional submissions as to detail she desires, but she ignores the answers set out above. In my view, enough detail was provided in the answers and Mr McMillan’s declaration.
Question 26 asked as follows:
“26.Please provide the relevant documents and information relating to all slip and fall incidents that occurred at the premises of the Woolworths Limited’s supermarkets and in the Woolworths supermarket at Springfield prior to and after the incident on 18 December 2014, including the number of the incidents, the dates and the description of the spillage hazards caused such slip and fall incidents.”
The first respondent’s answer was as follows:
“Question 29[sic]The request for documents relating to all slip and fall incidents at Woolworths' stores prior to and after 18 December 2014 is not directly relevant to either the circumstances of the accident or the reasons for the accident.”
The primary Judge held that because Question 26 relates to all slip and fall incidents at the store before and after the incident it did not bear on the circumstances or reasons for the applicant’s fall.27
The applicant submits that disclosure will show that the incident was the “product of a systemic pattern” of a “negligent system”. She relies on Broadhead v State of Queensland.28
In my view the existence of prior similar incidents, if any, may be information about the circumstances or reasons for the incident. Those circumstances could include that the respondent was on notice of the risk in a way that made the measures adopted to avoid the risk inadequate. That would be a circumstance of the incident for the purposes of s 27(1)(b)(i) of PIPA, read in the context of ch 2 pt 1 div 2 generally.
It may be that Question 26 should have been be answered as to any relevant prior incident for a reasonable period. In my view, that would be confined in time to no more than say five years beforehand and to slip and fall incidents where the slip was caused by a substance dropped on the floor making it slippery. However, the applicant’s question was not so confined. Therefore it may not have been erroneous for the first respondent to decline to answer. In my view, it is ultimately unnecessary to answer that question in the circumstances of this case.
10 February 2016 Request
As previously stated, this request asked questions of the specified officers and employees personally. There was no answer made. In my view, the applicant was not entitled to require the nominated officers and employees to answer the request. In failing to cause them to do so personally, the first respondent did not fail to comply with a duty under ch 2 pt 1 div 2.
Accordingly, in my view, at least to that extent the primary Judge was correct in the result to refuse to make any other order of compliance under s 35 of PIPA in relation to this request. That point does not completely answer the applicant’s application for leave to appeal against the order made on her request for compliance by the first respondent of any duty to answer the 10 February 2016 request taken as a request for information from the first respondent. However, in my view, it is unnecessary to pursue that question further in the circumstances of this case.
Utility
Even if the first respondent otherwise might have been ordered to give some further answer to Question 26 or to answer some part of the 10 February 2016 request, in my view it would not be appropriate to make those orders now.
As a practical matter, the pre-court procedures between the applicant and the first respondent under ch 2 pt 1 of PIPA are now at an end. The compulsory conference has been held and mandatory final offers have been exchanged. The applicant has started a proceeding in this court claiming damages for personal injury against the first respondent.
To grant leave to appeal now, other than in respect of the applicant’s undertaking not to communicate, would have no real utility.
Costs
The remaining question is what order should be made as to the costs of the application for leave to appeal and the appeal.
The applicant should succeed, in my view, on the narrow question whether she should be released from her undertaking not to communicate. Otherwise, she was unsuccessful. However, in at least one respect that was because an order for the first defendant to provide further information in the pre-court proceedings process now lacks utility. As well, there were some questions raised by the applicant that raised a reasonable argument on an unresolved question of law, although ultimately unsuccessful. Accordingly, in my view, it is appropriate to make no order to costs of the application for leave to appeal and appeal.
I would make orders as follows:
Leave to appeal is granted on the question whether the applicant’s undertaking not to communicate with the directors or employees of the first respondent should be released.
The appeal is allowed.
The applicant is released from the undertaking.
Otherwise leave to appeal is refused.
No order as to costs.
District Court of Queensland Act 1967 (Qld), s 118(2)(b). ↩
Coles Group Limited v Costin [2015] QCA 140, [60]-[66]. ↩
Woolworths Limited v Day & Ors [2016] QDC 81, [56]. ↩
See National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386, 559-561. ↩
See Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 178. ↩
[2008] 1 Qd R 101, 102 [4], 105-108 [13]-[24] and 108 [26]-[29]. ↩
(2013) 278 FLR 231, 238-241 [41]-[58]. ↩
See also the discussion in Jefferson-Taite v Lewis (2016) 310 FLR 136, where a similar conclusion was reached regarding provisions as to pre-court procedures in the Road Transport (Third Party Insurance) Act 2008 (ACT). ↩
Supreme Court of Queensland Act 1991 (Qld), s 29; District Court of Queensland Act 1967, s 119 and Uniform Civil Procedure Rules 1999 (Qld), rr 765(1), 765(4) and 766(1)(a), 766(4) and 766(6). ↩
Woolworths Limited v Day & Ors [2016] QDC 81, [4]. ↩
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, 265-268 [9]-[16].
Day
Woolworths Ltd & Ors [2016] QCA 337
(1981) 148 CLR 170
(2006) 226 CLR 256
(2013) 8 ACTLR 71
(2013) 278 FLR 231
(2016) 310 FLR 136
(1987) 162 CLR 479
(2016) 328 ALR 375
(2015) 256 CLR 569
(2013) 251 CLR 196
(2003) 9 VR 171
(1996) 66 FCR 474
Woolworths Limited v Day & Ors [2016] QDC 81, [5]. ↩
Uniform Civil Procedure Rules 1999 (Qld), r 8(1). ↩
Uniform Civil Procedure Rules 1999 (Qld), r 8(2)-(3). ↩
Tabcorp Holdings Ltd v Victoria (2016) 328 ALR 375, 389 [68]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, 581 [11] and 587 [23]; Lee v New South Wales Crime Commission (2013) 251 CLR 196, 217-8 [29], 264-265 [171]-[173] and 307-311 [307]-[314]. ↩
Personal Injuries Proceedings Act 2002 (Qld), sch (definition of “claim”). ↩
Woolworths Limited v Day & Ors [2016] QDC 81, [43]. ↩
[1958] 2 Ll LL Rep 596. ↩
(1983) 145 DLR (3d) 247. ↩
See Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171, 201-223 [102]-[183]; King v Milpurrurru (1996) 66 FCR 474; N Foster, “Personal Civil Liability of Company Officers for Company Workplace Torts” (2008) 16 Torts Law Journal 20; J Farrar, “The Personal Liability of Directors for Corporate Torts” (1997) 9 Bond Law Review 102; GHL Fridman, “Personal Tort Liability of Company Directors” (1992) 5 Canterbury Law Review 41. ↩
[2013] 2 Qd R 27. ↩
See N Foster and A Apps, “The neglected tort – Breach of statutory duty and workplace injuries under the Model Work Health and Safety Law” (2015) 28 Australian Journal of Labour Law 57. ↩
Woolworths Limited v Day & Ors [2016] QDC 81, [30]. ↩
Woolworths Limited v Day & Ors [2016] QDC 81, [30]. ↩
Woolworths Limited v Day & Ors [2016] QDC 81, [31]. ↩
Woolworths Limited v Day & Ors [2016] QDC 81, [31]. ↩
Woolworths Limited v Day & Ors [2016] QDC 81, [32]. ↩
[2006] QDC 273, [23]. ↩