FLETCHERS INTERNATIONAL EXPORTS PTY. LIMITED v. HODGES [2000] NSWCA 285

FLETCHERS INTERNATIONAL EXPORTS PTY. LIMITED v. HODGES [2000] NSWCA 285 - NSWCA 2000 case summary — Zoe

[8]

JUDGMENT 1 POWELL JA: There is listed before the Court today an application for leave to appeal and, if leave be granted, an appeal, against a judgment delivered and order made by Walker CCJ in the Compensation Court on an application made by Summons brought by the present Opponent ("Mr. Hodges") for an order said to be made available by the provisions of Pt.20 r8 of the Compensation Court Rules ("the Court Rules"). 2 At the commencement of the hearing the Court observed that, there having been a number of earlier decisions of, and orders made by, individual judges of the Compensation Court Youssef v. Berlei (A division of Pacific Dunlop Limited) - Egan CCJ 29 February 1995 (unreported) Johncock v. Tony Madden Refrigerated Transport Pty. Limited - Campbell CJCC 22 July 1996 (unreported) Allouche v. Kalamazoo Australia Limited - Truss CCJ 30 April 1999 (unreported) Campas v. James Hardie Windows Pty. Limited - Davidson CCJ 26 November 1999 (unreported) Townsend v. Shipcove Pty. Limited - Neilson CCJ 16 December 1999 (unreported) to the same effect as the order made by Walker CCJ, the case appeared to be a test case, and, accordingly, that the Court would grant leave but that in the circumstances the Claimant ("Fletchers") should bear the costs of the application for leave and the appeal in any event. 3 In his First Amended Summons Mr. Hodges who, in August 1999, had been employed by Fletchers as a labourer, sought the following (inter alia) orders (RAB 2-3): "1. The Applicant have access to the Respondent's premises at Lot 11 Yarrandale Road, Dubbo, N.S.W., to inspect the premises, inspect and carry out experiments on all scissor lift machinery there and to observe the work processes there and to take any measures and photographs of the premises, machinery and processes. 2. Such inspection etc., to be by the Applicant, the Applicant's Solicitor and Counsel and by an Expert or Experts qualified by the Applicant. 3. Such inspection etc., to take place on a date and at a time to be agreed at the mutual convenience of the parties with liberty to apply in default of such agreement. 4. That the Applicant have leave to issue the following Subpoenas for Production returnable in the absence of any Application for Determination filed in this Court: (a) to Fletcher International Pty. Limited with the following schedule: - 'All documents relating to the purchase, maintenance and repair of all scissor lifts owned or operated at the premises of Fletcher International Pty. Limited located at Lot 11 Yarrandale Road, Dubbo, N.S.W., 2830 and all documents relating to the instruction and training of the employees of Fletcher International Pty. Limited in the use and operation of scissor lifts including safety issues involved in such use and operation. (b) To Zurich Financial Services Australia Limited and to Zurich Australian Workers Compensation Limited, each with the following schedule: - 'All documents relating to any accidents or incidents, and claims or legal proceedings arising from any accidents or incidents, occurring at the premises of Fletcher International Pty. Limited in Lot 11 Yarrandale Road, Dubbo, N.S.W., 2830 involving the use, operation, maintenance or repair of scissor lifts or the instruction or training of employees of Fletcher International Pty. Limited in relation to the use and operation of scissor lifts.' (c) To WorkCover Authority of New South Wales with the following schedule: 'All documents relating to the Authority's investigation of an accident which occurred to Michael William Hodges at the premises of Fletcher International Pty. Limited in Lot 11 Yarrandale Road, Dubbo, N.S.W, 2830 on the 21st August, 1999, including but not limited to records of interview, reports of technical inspection of any equipment or plant and any prosecutions or recommendations arising out of such investigation.'"

[10]

5 As is apparent, it was not Mr. Hodges' object in bringing that application to claim compensation - such an application would have needed to be commenced by the filing of an Application for Determination (see Court Rules Pt. 5 r.1) - but to obtain information which would enable him to determine whether or not he ought to proceed to claim compensation from Fletchers - and, in particular, compensation pursuant to the provisions of ss. 66 and 67 of the Workers Compensation Act 1987 ("the Act") - or to commence proceedings at common law seeking to recover from Fletchers damages for negligence. 6 Section 151A of the Act, which was introduced into the Act in 1989 by the Workers Compensation (Benefits) Amendment Act 1989 as part of a package restoring to employees who have been injured modified common law damages, provides as follows: " 151A Election - damages or 'Table of Disabilities' compensation (1) In this section and in section 151V: damages does not include damages to which Part 6 of the Motor Accidents Act 1988 applies. permanent loss compensation means compensation under Division 4 of Part 3 (Compensation for non-economic loss). (2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both: (a) permanent loss compensation in respect of the injury, and (b) damages in respect of the injury from the employer liable to pay that compensation, but is required to elect whether to claim that permanent loss compensation or those damages. (3) The person makes that election (or is taken to have made that election): (a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury), or (b) by accepting payment of that permanent loss compensation or by the Compensation Court making an award in respect of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury). (4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section. (5) If: (a) a person elects to claim permanent loss compensation in respect of an injury, and (b) after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation, and (c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur, the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury."

[12]

9 The Compensation Court Act 1984 ("the Court Act") provides (inter alia) as follows: " 15 (1) The Court shall have the jurisdiction vested in it by or under this or any other Act. (2) The Court has the functions vested in the District Court in respect of the following matters: (a) compelling the attendance of witnesses and examining them on oath, affirmation or declaration; (b) compelling the production, discovery and inspection of books, records, documents and other papers; ……… Rule Committee 42. (1) Where, in this or any other Act, it is provided that rules of Court may or shall be made, those rules shall be made by a Rule Committee … Rules 43 (1) Rules of Court may be made for or with respect to: (a) all matters of procedure and practice, including the prescription of forms to be used in any proceedings before the Court and the payment of witnesses' expenses; ……… (2) Without affecting the generality of subsection (1), rules of Court may be made, in relation to matters within the Court's jurisdiction, for or with respect to: (a) the conduct of call-overs of matters for hearing by the Court; (b) the issue and return of subpoenas; (c) the listing of matters and the removal of matters from lists; (d) the commencement of proceedings; (e) pre-hearing conferences and arbitration; (f) the charging of fees for interpreting services; (g) the enforcement of awards, orders, determinations, rulings, directions or decisions of the Court; ………" 10 The Court Rules provide (inter alia) as follows: " PART 1 - PRELIMINARY Interpretation 5. (1) In these rules - ……… "originating process" , in relation to any proceedings, means the document by the filing of which the proceedings are commenced; "proceedings" means proceedings to the Court; ……… Procedure wanting or in doubt 7. (1) Where a person desires to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by the Act, the Compensation Act or the rules, or by or under any other Act, or the person is in doubt as to the manner or form of procedure, the Court may, on application by the person or of its own motion, give directions. (2) Proceedings commenced in accordance with the directions of the Court shall be well commenced. (3) A step taken in accordance with the directions of the Court shall be regular and sufficient. PART 5 - COMMENCEMENT OF PROCEEDINGS Division 1 - Application for Determination and General Originating process 1. Except as otherwise provided in the rules or by or under any Act, the originating process in respect of any proceedings shall be an application for determination. ……… Time of commencement 3. Proceedings shall be commenced when the originating process in respect of the proceedings is filed. ……… Division 2A Proceedings commenced by summons 11A Application and Procedure (1) This Division applies to proceedings commenced by summons. (2) For the purposes of Division 1 of Part 5, a Summons is an originating process. (3) The procedure for the hearing and disposal of a Summons shall be as near as practicable to that applicable to the hearing and disposal of a notice of motion in accordance with the provisions of Part 14 (2), (3), (4) and (5). 11B Particular proceedings commenced by summons The following proceedings shall be commenced by summons where no proceedings have been commenced in relation to the subject matter in dispute: ……… (b) for an order for inspection of property in the nature of the orders set out in Part 20 rule 8 and in accordance with the procedures therein applicable. ……… PART 20 - MEDICAL EXAMINATIONS, INSPECTION OF PROPERTY ETC.

[14]

11 Pt. 20, r 8 of the Court Rules appears to have been derived from SCR Pt 25, r8 (see also District Court Rules Pt 23 r 9). SCR Pt 25, r 8, which formed part of the Fourth Schedule to the Supreme Court Act 1970 when enacted, appears to have been derived from s.104 of the Common Law Procedure Act ("the CLP Act") which, as amended by the Common Law Procedure (Amendment) Act 1962, following the decision of the Full Court in Grapulin v. Cartons and Corrugated Papers Pty. Ltd. (1960) 61 SR 348, was as follows: "104. (1) Upon the application of either party the Court or a Judge may make a rule or order upon such terms as to costs and otherwise as the Court or Judge thinks fit for the inspection by any one or more of the following, that is to say, the jury, such party, his counsel, solicitor and such other person as the Court or Judge in such rule or order may designate of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute." 12 The power to authorise an inspection embodied in s. 104 of the CLP Act was not an inherent power of the old common law courts - a situation to be compared with the power of the Court of Chancery to allow pre-action discovery (see Norwich Pharmacal Co. v. Customs and Exercise (1974) AC 133) - but a power conferred on them by s.58 of the Common Law Procedure Act 1854 (England) adopted here as s.24 of the Common Law Procedure Act 1857 (20 Vic No. 31) and, as varied, then incorporated into the CLP Act. The provisions of s.104 of the Common Law Procedure Act permitted inspection after commencement and before pleading in an appropriate case but, as is apparent, did not permit inspection prior to the commencement of any relevant proceedings. 13 The provisions of Pt 23 r 9 of the District Court Rules are expressly authorised by s.68(2) of the District Court Act 1973 which provides (inter alia): "68. ……… (2) Without limiting the generality of subsection (1), the rules may make provisions for or with respect to empowering the court to order that: - ……… (e) a party to be at liberty to inspect property, whether real or personal and whether or not in the possession or control of any party, for the purposes of any action. ………" 14 In his Judgment Walker CCJ, after considering some of the earlier judgments to which I referred above wrote (inter alia) (RAB 47-48): " ……… RESOLVING THE MATTER 17. Considering the case law I have reviewed I find myself in agreement with my colleagues (sic) judgments and determine: 1. Elections made pursuant to s 151A of the 1987 Act are a matter arising under the Act in respect of which this Court exercises concurrent jurisdiction. 2. The nature of such an election is to determine whether or not to proceed with a claim under s.66 and 2.67 of the Act. 3. This Court has inherent power to make orders for inspection. 18. I therefore find this Court has power to make the orders requested. ……… ORDERS 22. I therefore make the following orders: 1. That pursuant to the powers vested in the Court by CCR 20.8(1): (a) The employer grant the worker access to the premises at Lot 11 Yarrandale Road Dubbo NSW to inspect those premises; carry out experiments on all scissor lift machinery there, to observe the system of work and its processes and to take photographs of the premises, machinery and processes. (b) The worker, his solicitor, counsel and any experts qualified by the worker are granted permission to attend the inspection. (c) The inspection shall take place on a date and at a time agreed upon by the parties. I grant liberty to apply if agreement cannot be reached."

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (39 paragraphs)

Cases Cited (2)

Cited By (1)