25 The prejudice upon which the plaintiff relies as justifying the disallowance of leave to amend is that by the time the defendant discovered the contract and applied to amend its defence, a claim by the plaintiff against the employer was statute barred. Thus, if the amendment is allowed and it is successful at trial, the plaintiff will be unable to recover common law damages against any party in respect to this accident. Whereas if the defendant had pleaded s 175 and relied upon Part IV Division 2 of the Act, including s 93E(3) prior to its cause of action against the employer becoming statute barred, he could have proceeded against the employer instead.
26 The defendant says that the strength of the defence which the amendment seeks to plead is a matter going in favour of allowing the amendment. The defendant says that at any time within the six-year limitation period the plaintiff could have commenced an action against the employer and it is the plaintiff's tactical decision not to pursue this course of action which has resulted in prejudice to him.
27 There are some matters that were raised in the hearing of the appeal that can be quickly disposed of. For example, the public interest in the fair and efficient disposition of litigation, the delay and the alleged failure to give a reasonable explanation for the delay in discovering the contract and making the application to amend and the deficient nature of the original defence and discovery by the defendants.
28 Whilst these are matters of some relevance, in this case they are not determinative of the application. First it is not suggested that there is any fraud or improper concealment of the defence or the contract on the part of the defendant. Secondly as was said in Clough & Rogers v Frog (supra) at 618. These matters "go at the most delay and regularity only, matters which are relevant to costs but do not constitute injustice to the respondent in the sense in which that expression."
29 The alleged injustice is the fact that the plaintiff is now statute barred from commencing an action against or joining to this action the employer. If that situation has arisen as a consequence of the belated discovery of the contract or the application for leave to amend the defence then that is an injustice that would warrant me disallowing the amendment. Otherwise the application should be allowed.
30 In respect of this issue the plaintiff put its case on appeal in the following way. The plaintiff submits that until the contract was discovered the plaintiff did not know of the relationship of the employer and the defendant and the employer's obligation with respect to the plant that the plaintiff was using. He says that according to the principles in Flower and Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134 it would have been an abuse of process for the plaintiff to join the employer to this action or commence proceedings against the employer.
31 That case is not authority for the proposition which the plaintiff seeks to obtain from it. The facts of the case were that the plaintiff's solicitors advised the plaintiff to commence legal proceedings against the defendant despite also providing advice that they could not win any such litigation if put to the test. It was said that the urgent institution of proceedings were an "attempt to secure some bargaining position." Goldberg J found at first instance that the proceedings had been instituted notwithstanding that the solicitor held the view that his client could not succeed and that the proceedings had been instituted for the primary purpose of delaying action by the defendant to recover money from the plaintiff under a building contract. He found that the proceedings were not instituted for the purpose of vindicating any right that the plaintiff might have. These and subsidiary purposes, His Honour held amounted to an abuse of process because of the illegitimate purpose for which the proceedings were instituted. That decision was affirmed on appeal.
32 Flower and Hart v White Industries is an application of the principle from Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509. The facts of that case were that Dr Spautz had an arguable case in criminal defamation. Nevertheless it was held that he had instituted proceedings for an improper purpose, that being to secure his reinstatement as a lecturer with a University. What led to the conclusion that the proceedings were an abuse of process was the fact that Dr Spautz had not commenced them to vindicate the legal right which he claimed, but had done so for an ulterior purpose.
33 Counsel for the plaintiff in this case argued that Flower & Hart v White and Williams v Spautz were authorities for the proposition that an arguable or prima facie case was not sufficient to justify the joining of the party or the commencement of an action against a party. That is not correct. The decisive point in those cases was that the proceedings were instituted for an ulterior purpose and not for the purpose of vindicating legal rights.
34 The plaintiff's submissions were to the effect that if it was legitimate for the defendant not to apply to amend its defence until it had discovered the contract and was aware of the precise nature of the relationship between it and the employer, then similarly it was legitimate, indeed obligatory, of the plaintiff not to commence proceedings against the employer prior to discovery of the contract. Thus the plaintiff argues that the failure to discover the contract until February 2003 when the action against the employer was then statute barred caused irreparable prejudice to the plaintiff and thus the application for leave to amend the defence should be disallowed.
35 There are two difficulties that I have with this submission. The first is that I do not accept that it was legitimate for the defendant to await the discovery of the contract before seeking leave to join the employer as a third party, to plead that it did not operate the mine or to plead that it was a deemed employer. It seems to me that the defendant must have at all times known of the basic facts sufficient for it to instruct its solicitors to plead these matters. Further the fact that the contract had been "archived" is hardly an excuse for the failure of the defendant to discover this document before February 2003, over twelve months after the proceedings had been instituted.
36 Secondly whilst I acknowledge that the plaintiff could not have been expected to know the precise relationship between the employer and the defendant prior to the discovery of the contract, that does not explain why the plaintiff decided not to pursue an action for common law damages against his employer on the basis of a breach of a non delegable duty of care to provide a safe place of work, safe system of work and safe plant for its employee, the plaintiff. Thus I do not accept that the belated discovery of the contract had the prejudicial effect claimed by the plaintiff.
37 Counsel for the plaintiff submitted that until the discovery of the contract the plaintiff did not know and could not be expected to know that the employer had obligations with respect to the plant at the mine. This proposition denies the existence of the non-delegable duties that I have referred to above. In the absence of the discovery of a document which would indicate that the employer had discharged those duties by contracting with the defendant or another party to provide the safe place, plant and system of work the correct assumption would be that liability for failure to provide those matters and to comply with those duties lay with the employer. Thus I do not accept the plaintiff's submissions in this regard.
38 Further, in 1999 the plaintiff referred to the Director of Conciliation and Review ("the Director") the question of his degree of disability arising out of the accident pursuant to s 93D(5) of the Act. The defendant says that the only reason why the plaintiff would have made such a referral is to obtain a determination of his level of disability in order to comply with s 93E(3) of the Act. Thus enabling him to obtain an award of common law damage against the employer. The plaintiff on the other hand says that the referral was for a different purpose and that the referral is not a legal proceeding. Whilst the plaintiff conceded that the hoped for result would be to leave open the possibility of joining the employer or commencing an action against the employer it did not provide credible evidence that would meet the test for commencing an action against the employer. I accept the defendant's submissions in this regard.
39 The background to the referral is that in October 1999 a new s 93D of the Act came into force which applied to the plaintiff's potential claim against the employer. In December 1999 Mr J Schultz, then an orthopaedic surgeon, provided reports to the plaintiff's solicitor in regards to the extent of disability of the plaintiff. On 14 December 1999 the plaintiff referred his degree of disability to the Director. The referral was supported by Mr Schultz's reports. That referral was listed for a preliminary review on 11 May 2000 and that preliminary review was adjourned on more than one occasion. The matter was listed on 27 July 2000 for review on the issue of whether there were grounds to establish a prima facie and bona fide defence that the plaintiff was not a worker within the statutory definition of the term contained in the Act. On that date the referral was adjourned sine die. There is no evidence that either party has asked for the referral to be re-listed.
40 By application dated before 15 October 2001 the employer applied to the Supreme Court of Western Australia for a writ of certiorari against the Director to quash the referral to him. The basis for this application was an allegation that the medical evidence supporting the application for referral did not meet the statutory requirements. On 19 October 2001 that application was adjourned sine die appending the outcome of a number of similar cases. Those cases were determined by judgment of the Full Court delivered on 16 May 2002.
41 Complicating matters even further in or about August 2000 Mr Schultz was disqualified from practicing as an orthopaedic surgeon and the plaintiff was required to seek other medical opinion. On 6 November 2001 Mr A Geddes, an orthopaedic surgeon, provided a report to the plaintiff's solicitors in respect to the plaintiff's injuries arising out of the accident. In respect to his opinion as to the plaintiff's degree of disability he stated: