Plaintiff v Defendant

1 Mr Barry Wadley, the plaintiff, suffered serious injuries when in the course of his employment with the defendant, Finemore,[1] he fell from the trailer of a B-Double rig, on Australia Day 2007. The accident occurred in Corowa, New South Wales, and that fact is the source of the current dispute between the parties. A jury trial of Mr Wadley's claim is scheduled for the Wodonga sittings in March 2013.

2 At the time of the accident Mr Wadley lived in Victoria and, on his account, was employed pursuant to a contract of employment in this state from Finemore's depot in Wodonga. Finemore contends that, notwithstanding that payments of compensation were made pursuant to the Accident Compensation Act 1985 (Vic)[2] to Mr Wadley, he was not entitled to compensation by reason of s 80 of the Act. In its defence, Finemore argues that Mr Wadley's claim is governed by Part V of the Workers Compensation Act 1987[3] of New South Wales.

3 Finemore now wants the question of Mr Wadley's entitlement to compensation to be determined as a preliminary point. This would enable a determination of the procedural and substantive requirements applicable to the claim before the further litigating of Mr Wadley's case on questions of liability and quantum.

4 Mr Wadley has a different plan. He seeks to dispense with a jury trial and have all the issues (including questions of appropriate law, liability and quantum) determined at the one hearing before a judge.

5 I have concluded that, subject to formulation of the questions, the issues raised in the defence should be determined as preliminary questions. My reasons now follow.

6 Mr Wadley filed a summons in October 2012 seeking the trial be heard by a judge sitting alone. No application has formally been made by Finemore in relation to the trial of a preliminary question pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).[4] However, no point was taken by Mr Wadley about this, and I accept that it was open to Finemore to raise the alternative proposition at this hearing.

7 Pursuant to paragraphs 14 to 20 of the Amended Defence, Finemore asserts that the plaintiff is not entitled to compensation under the Act by reason of s 80 of the Act, which reads:

(1) There is no entitlement to compensation under this Act other than in respect of employment that is connected with this state.

...

(3) A worker's employment is connected with -

(a) the State in which the worker usually works in that employment; or

(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or

(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

8 In paragraphs 14 and 15 of the Amended Defence, Finemore asserts that Mr Wadley usually worked in more than one state so the terms of s 80(3)(a) of the Act are not satisfied (at least in relation to Victoria).

9 In paragraphs 16 and 17 of the Amended Defence, Finemore asserts that Mr Wadley was usually based in New South Wales and s 80(3)(b) is engaged. It then says in paragraph 18 that as a result of the operation of s 80(1) of the Act, Mr Wadley is not entitled to compensation.

10 In paragraphs 19 and 20 of the Amended Defence, it is asserted that Mr Wadley is entitled to bring his claim for damages in accordance with the provisions of Part V of the Compensation Act and, further, that he is not entitled to recover damages as he has not complied with s 151(h) of that Act.

11 It is now settled that where a tort occurs outside the territory of the forum state Australian choice of law rules require the forum court to apply the law of the place where the tort occurred in determining the controversy between the parties.[5]

12 The fact that Mr Wadley was injured in New South Wales does not, of itself, result in the conclusion that the law of New South Wales is the proper law of the tort. This was the very issue that the High Court grappled with in Pfeiffer. Mr Rogerson, who was employed in the Australian Capital Territory, was injured in New South Wales and the question arose as to whether the Compensation Act was applicable to his claim.

13 The problem in identifying the location of a tort was recognised in that seminal decision:

Before turning to the question whether the common law choice of law rule should be the lex fori or lex loci delicti, it is necessary to recognise that the place of the tort may be ambiguous or diverse. Difficulty will arise in locating the tort when an action is brought, for example, for product liability and the product is made in State A, sold in State B and consumed or used by the plaintiff in State C. And the tort of libel may be committed in many States when a national publication publishes an article that defames a person. These difficulties may lead to litigants seeking to frame claims in contract rather than tort (as the NSW Compensation Act anticipated (s 151E)) or for breach of s 52 of the Trade Practices Act 1974 (Cth) or some similar provision. Characterising such actions may be difficult and may raise questions whether the private international law rules about tort or some other rules are to be applied.

Moreover, even if the place of the tort can be located in a single jurisdiction, it will often enough be entirely fortuitous where the tort occurred. Why, so the argument goes, should the rights of Victorian residents injured when the car in which they are driven (by another Victorian) differ according to whether, if a driver falls asleep and the car runs off the road near the Victorian border, it does so south of Wodonga or north of Albury? But for every hard case that can be postulated if one form of universal rule is adopted, another equally hard case can be postulated if the opposite universal rule is adopted.[6]

14 In Pfeiffer, Mr Rogerson was working as a carpenter on a building site in New South Wales and his allegation related to the system of work that operated on that site which resulted in his injuries. Accordingly, New South Wales law applied and the provisions of the Compensation Act governed determination of Mr Rogerson's entitlement to damages.

15 Subsequently in Dow Jones & Co Inc v Gutnick,[7] it was observed by the High Court, in the context of a claim for defamation, that:

Many of these territorial connections are irrelevant to the inquiry which the Australian common law choice of law rule requires by its reference to the law of the place of the tort. In that context, it is defamation's concern with reputation, and the significance to be given to damage (as being of the gist of the action) that require rejection of Dow Jones's contention that publication is necessarily a singular event located by reference only to the publisher's conduct. Australian common law choice of law rules do not require locating the place of publication of defamatory material as being necessarily, and only, the place of the publisher's conduct (in this case, being Dow Jones uploading the allegedly defamatory material onto its servers in New Jersey).

Reference to decisions such as Jackson v Spittall, Distillers Co (Biochemicals) Ltd v Thompson and Voth v Manildra Flour Mills Pty Ltd show that locating the place of commission of a tort is not always easy_. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is "where in substance did this cause of action arise"? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt._

In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher's conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.[8]

16 Accordingly, in this case, the initial question to be determined by a court is "where in substance did the cause of action accrue?"[9] The answer to that question will resolve the issue of which law is to be applied. This is particularly so given the assertion in paragraphs 19 and 20 of Finemore's defence that the Compensation Act applies to Mr Wadley's claim.

17 Essentially, Mr Wadley's case turns upon the provision of an appropriate safety rail on the top of the B-Double trailer. Where he fell (in the sense of the location of the fall), at least on one view of the facts, was fortuitous although it may be that the air hose he was using at the time played some part in his accident. It was with these problems in mind that I asked counsel for Finemore to consider whether it was to be argued at trial that the law of New South Wales was the proper law of the tort. Helpfully, and quickly, counsel responded in writing on 29 January 2013 in the following terms:

The defendant's position is that if it fails on the preliminary point; it will not contend that the law of New South Wales is the law of the tort. The defendant's position is that the law of Victoria should be the law applied at trial.

The preliminary point referred to by counsel is that of the application of sub-ss 80(1) and 80(3) of the Act.

18 Given this concession, it must follow that the contention maintained in paragraphs 19 and 20 of the Amended Defence as to the applicability of the Compensation Act now falls away.

Should the s 80 point be determined as a preliminary issue?

19 At the outset, I should observe that I am not entirely certain as to what consequences are alleged by Finemore to flow from a finding in its favour that s 80 of the Act is engaged. Given its concession as to the applicability of Victoria law it cannot be that the Compensation Act applies. Is Mr Wadley's claim said to be statute-barred? Or, alternatively (and more likely, I suggest), does Mr Wadley's claim come to be determined outside the Act by reference to the common law alone, or the common law as modified by statute (for instance, Parts VBA and XI of the Wrongs Act 1958 (Vic))?

20 Whatever the position, it is clear a decision will have to be made by the trial judge, either as a preliminary point or as a determination in the course of the trial, as to whether Mr Wadley's employment is connected with Victoria as provided by s 80(1) of the Act.[10] As the pleadings stand, this requires evidence on two limited issues -

21 Counsel for Finemore contended that this was a discrete and particularly limited inquiry, well suited to a preliminary question. Counsel stated that two witnesses will be called by Finemore, and documentary evidence will be tendered. Counsel for Mr Wadley suggested that up to five witnesses, including Mr Wadley, would be called on this point, and documentary material would also be tendered.

22 As I mentioned earlier, Mr Wadley says that rather than determine a preliminary point it is appropriate to dispense with a jury and have the matter heard by a judge who can determine questions of the applicability of s 80, its consequences, liability and quantum at the one time. His counsel noted that each of the witnesses to be called at the liability trial will also give evidence, at least as presently advised, on the s 80 question. This would lead to an unnecessary duplication of evidence.

23 Counsel for Finemore contended that the evidence of each of these witnesses would be short and confined and enable a far clearer delineation of the issues. Indeed, it was argued that it may be in Mr Wadley's interests in having a determination as to the applicable law prior to venturing into a liability and quantum trial.

24 In my opinion, it is appropriate for the issues raised by the defence and based on s 80 of the Act to be dealt with as a preliminary question (or questions). I reach that conclusion for the following reasons.

25 Although some old cases indicate that sparing use should be made of r 47.04, those decisions pre-date the Civil Procedure Act (Vic) 2010,[11] which governs a claim such as this. Section 8 requires a court to give effect to the overarching purpose (described in s 7). Section 9 provides that a Court shall further the overarching purpose by having regard to the following objects:

(a) the just determination of the civil proceeding;

...

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

and

(g) dealing with a civil proceeding in a manner proportionate to -

(i) the complexity or importance of the issues in dispute; and

26 In Jacobson v Ross,[12] Brooking J noted that an order for the trial of a preliminary issue may be made despite the opposition of a party. His Honour went on to say that:

It is a trial judge's duty to see that the crucial issues are tried as expeditiously and inexpensively as possible, and the parties' advisers should help him to carry out this duty: Rule 47.04 provides a useful means to that end, and a means of combating the gargantuan trial, the modern behemoth now straining to breaking point the fabric of both civil and criminal justice.[13]

There is a need for a degree of innovation and flexibility if courts are to meet the legitimate expectations of litigants that come before it, particularly in long cases.[14]

This approach is consistent with the aims of the CPA.

27 The s 80 point is a genuinely discrete issue and requires limited evidence solely relating to Mr Wadley's place of employment and his duties. In my opinion, it is in the interests of both justice and the efficient conduct of court business to determine this point before the liability and quantum trial. Both parties should know precisely what law is to be applied to Mr Wadley's claim prior to the trial commencing. I do not expect that there will be significant duplication of evidence. The real question at the liability trial relates to the adequacy of the railings on the top of the trailer and his work activities at that time. The s 80 point relates solely to where Mr Wadley usually worked and was based. Undoubtedly, there will be some inconvenience to several of the witnesses who may have to attend court on two separate occasions, but I think this a small price to pay when compared to the certainty which a determination of this preliminary issue will provide.

28 Secondly, I remain concerned as to what consequences flow if Finemore's argument concerning s 80 is accepted and its impact on Mr Wadley's claim. As I mentioned earlier, it might be that the claim is statute-barred by reason of a lack of entitlement to compensation under the Act or perhaps it is governed by other legislative provisions. This issue should be cleared up - indeed it is in Mr Wadley's interest to resolve this point prior to embarking on a trial of his claim.

29 It is appropriate that the issues raised in paragraphs 14 to 18 of the Amended Defence be determined as preliminary questions. I have framed the order as suggested by counsel for Finemore - but it will require the drafting of a further question dealing with the consequences of a favourable finding to Finemore on the s 80 point. In addition the Amended Defence should be amended to squarely set out Finemore's position if it is successful.

30 This proceeding is due to be called over later this month. Both parties should be ready to proceed at the Wodonga sittings in March to argue the preliminary issue - subject, of course, to any further ruling by the trial judge. The question of whether the trial should subsequently be heard before a jury or judge should be resolved by the trial judge and Mr Wadley's summons is adjourned for that purpose.

31 I have also made orders relevant to particular discovery which need not be discussed in this ruling.

32 The appropriate order in relation to costs is that the costs in this application be costs in the cause.

1. The Defendant file and serve by 21 February 2013 an affidavit in relation to the following classes of documents:

1. The Plaintiff's driver log books; 2. The maintenance records specifically in relation to the railing on the truck trailer that is the subject of this proceeding;

1. All documents with regard to the Defendant's workcover insurances as at 26 January 2007 including but not limited to disclosure documents, schedules of employees covered under the policy, coverage policy documents;

1. All documents and correspondence between the Defendant and the Defendant's workcover insurer with regard to the decision of the Victorian Workcover Authority in or about December 2012 to cease making payments to the Plaintiff which were being made consequent upon the incident on 26 January 2007; 2. All contractual documents and correspondence between the Defendant and QAF in anyway relevant to their commercial relationship as at 26 January 2007; 3. In the event that category (a) documents do not or no longer exist, all maintenance records for each of the prime movers and trailers the Plaintiff may have driven in the period 1 July 2006 to 26 January 2007.
2. The Affidavit in order 1 of these orders identify:
   1. Which documents are in the Defendant's possession; and
   2. If a document is no longer in the Defendant's possession, when it parted with it and its belief as to what has become of it.
3. The Defendant provide by 21 February 2013 to the Plaintiff's solicitors copies of the documents in its possession referred to in its affidavit filed in accordance with Order 1.
4. Subject to any further order, pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005, the question of the Plaintiff's entitlement to compensation under the Accident Compensation Act 1985 (Vic) be tried as a preliminary issue at the Wodonga sittings commencing 4 March 2013.
5. The Defendant have leave to amend its Amended Defence so as to plead the consequences for the Plaintiff of a finding that the Plaintiff is not entitled to compensation by reason of s 80 of the Accident Compensation Act 1985 (Vic).
6. The Plaintiff's summons of 31 October 2012 be adjourned to a dated to be fixed.
7. The costs in this application be costs in the cause.

[5] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 ("Pfeiffer"); Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491; Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331.

[6] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 538 - 539 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (citations omitted).

[7] (2002) 210 CLR 575.

[8] Ibid 606-7 (Gleeson CJ, McHugh, Gummow and Hayne JJ) (emphasis added).

1. [9] See also Voth v Manildra Four Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, 567; Sydbank v Barnetton Holdings Pty Ltd (1996) 149 ALR 134, 140 - 142; Buttigieg v Universal Terminal & Stevedoring Corporation [1971] VR 626.

[10] This is not a novel exercise. See: Mynott v Barnard [1939] HCA 13; (1939) 62 CLR 68; Dykes v Dunn [1958] VR 50; Workcover Authority of New South Wales v Billpatt Holdings Pty Ltd (1995) 11 NSWCCR 565 and Stanley v Gallagher (2002) 23 NSWCCR 556.

[12] [1995] VicRp 24; [1995] 1 VR 337.