53 These particulars of negligence need to be considered in the light of the admitted fact that a forklift is a motor vehicle, and in the light of the further fact that it is designed for the use of lifting and moving heavy objects secured within its tines or within such other restraints as are necessary to ensure that its load remains secure.
54 There are many other ways in which the plaintiff's claim might be put but in whatever way that is done, it appears to me that his case comes down to fault in the use or operation of a motor vehicle. It stands in quite a separate position from that considered in Prospect County Council or in the other case which was considered by me earlier in the sittings.
55 As the decisions in New South Wales Grain Corporation and in Zurich Australian make clear, it is not to the point the case could also answer the characterisation of one based upon an unsafe system of work, or upon the failure of an employer to provide appropriate plant or equipment or to properly supervise a work activity.
56 For these reasons I am of the view that the defendant's application has been made good, with the consequence that the statement of claim should be struck out, on the ground that the conditions precedent to the commencement of proceedings in the Supreme Court have not been met.
57 This is not a bar to future action. It merely means that the procedural steps for a claim under the MAC Act have to be taken, and the various steps which thereafter rest upon the defendant followed, before proceedings can be instituted and pursued in the appropriate court.
58 Had the point taken not been one going to jurisdiction, I would have refused leave to the defendant to file the notice of motion in circumstances where the matter had been allowed to continue to the point of being called on for hearing. Each party had fully prepared the matter as one suitable for determination as a claim for modified Common Law damages under the Workers Compensation Act; and the plaintiff has, in effect, been lulled into a false sense of security and will no doubt now incur significant additional legal costs, and will suffer further delay in the resolution of his claim, which could have been avoided had the point been taken by the defendant in a timely fashion.
59 Whether the Legislature ever directed its attention to cases such as the present involving the type of equipment in question, and the manner of their use in coal or hard rock mines, and whether it is appropriate that such cases should be determined under the MAC Act, or under the Workers Compensation Act is no doubt debatable. In view of the clear wording of the legislation, however, this is not a case where there is any ambiguity which would permit of an application of the purposive rule of interpretation an application of s 6 of the MAC Act.
60 As a result I make an order permitting the defendant to file the amended defence which for the first time raised the point. I also direct that the proceedings be struck out, although clearly without prejudice to the bringing in the appropriate court of fresh proceedings under the MAC Act, once the necessary steps have been taken.
61 This brings me to the question of costs which I find somewhat problematic. It must be said that it is most regrettable that this point was taken by the defendant so late in the proceedings. However, an obligation did rest with the plaintiff to commence the action in the appropriate format, and to follow the requirements of whichever Act applied to the proceedings. As I have observed, the result of the application will be to defer consideration of a claim which will, no doubt, eventually occupy the time of a court, as well as that of those who are responsible for assessment under the MAC Act, unless the claim can be otherwise settled.
62 It would have been possible for the defendant to have waived compliance with the condition precedent, and to have allowed the matter to proceed before me so far as it could under the MAC Act. However, it was not obligatory upon the defendant to do so. As a matter of law it was fully entitled to take the point which it has taken and, having done so, the outcome was obvious.
63 It is more than troublesome that the point did not emerge until so late in the proceedings, and it is equally unsatisfactory that, as a consequence of it, the plaintiff has incurred costs which will be largely wasted. I have been informed that the matter was first brought to attention late last week, although the motion was not itself filed until the matter was called on for hearing yesterday pursuant to leave then granted by me.
64 The point has arisen for the first time in these sittings, and it was one which was not apparent to either the plaintiff's legal advisers, to the defendant's legal advisers, or to the insurer of the defendant which is the general insurer for the industry, and which as such, might have been expected to have given proper consideration to it once the legislation came into force.
65 There is obviously a degree of fault on both sides, and the question really is whether I should order each party to pay its own costs, as Mr Gleeson suggests is appropriate, or whether I should order the defendant to pay the entirety of the plaintiff's costs, on an indemnity basis, as Mr Nock contends.
66 I think that the appropriate course falls between those two positions, it being my view that those representing the defendant should have raised the matter in a more timely fashion, having regard to the position of Coal Miners Insurance as a general insurer in the industry.
67 I take the view that the defendant should pay the plaintiff's costs up until the time of and including the final conference which was fixed for 1 August 2002. I so order. Thereafter I direct that each party pay its own costs.
68 I make the costs order mentioned for the reason that the costs of the plaintiff incurred up and until the final conference, have been concerned principally in the investigation of the liability and medical issues and they will be as relevant for a MAC claim as they would have been for a modified common law damages claim under the Workers Compensation Act. It would be unfair to expect the plaintiff to bear the whole of such costs in circumstances where he obviously has, at least, a more than reasonable prospect of successfully establishing a claim under the MAC Act, and in circumstances where the industry insurer should have identified the point at issue from the outset, yet it allowed the plaintiff to continue the action, up to the moment it was called on for hearing.
69 I add, finally, that close consideration on the part of the industry, and the Legislation, is required of the question whether accidents underground, which involve the use of equipment falling within the definition of motor vehicles, should be exempt from the operation of the MAC Act. The use of vehicles with the modifications required for mining purposes, and the nature of the activities in which they are displayed arguably places them in a very different category from that which would apply to the use of conventional vehicles above ground.