Meyers v The Director of National Parks [2006] NFSC 2

SUPREME COURT OF NORFOLK ISLAND

Meyers v The Director of National Parks [2006] NFSC 2

PRACTICE AND PROCEDURE – Strike out application – Action for damages by injured employee against an alleged tortfeasor who was not the plaintiff's employer – Whether Court has jurisdiction having regard to Employment Act. Employment Act 1988 (NI) s 43 THOMAS JOHN MEYERS v THE DIRECTOR OF NATIONAL PARKS SC13 of 2005 WILCOX J 20 FEBRUARY 2006 SYDNEY (HEARD IN NORFOLK ISLAND)

IN THE SUPREME COURT

OF NORFOLK ISLAND SC13 of 2005

BETWEEN: THOMAS JOHN MEYERS

Plaintiff

AND: THE DIRECTOR OF NATIONAL PARKS

Defendant

JUDGE: WILCOX J

DATE OF ORDER: 20 FEBRUARY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The orders proposed by paras 1, 2 and 3 of the defendant's application of 22 August 2005 be refused. 2. The application in relation to para 4 be stood over generally with liberty to restore that application to the list by notice to the Court and the plaintiff. 3. The defendant pay the costs of the application incurred by the plaintiff to date.

IN THE SUPREME COURT

OF NORFOLK ISLAND SC13 of 2005

BETWEEN: THOMAS JOHN MEYERS

Plaintiff

AND: THE DIRECTOR OF NATIONAL PARKS

Defendant

JUDGE: WILCOX J

DATE: 20 FEBRUARY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 On 26 August 2005, the defendant in this proceeding, the Director of National Parks, filed an application seeking the following relief: (i) an order setting aside the Amended Originating Application; or alternatively, (ii) an order requiring the plaintiff in the principal proceeding, Thomas John Meyers, to provide security for the defendant's costs. 2 On 31 August 2005, I held a directions hearing during which it was agreed that argument about the alternative proposed order would be postponed and that a determination about the first proposed order would be made by reference to written submissions, without an oral hearing. Directions were made for the filing of evidence, on which any party wished to rely in connection with the interlocutory application, and written submissions. 3 The only evidence filed was an affidavit of Cameron Hutchins, a solicitor acting on behalf of the defendant. Mr Hutchins annexed to his affidavit certain documents, including a copy of the Employment Act 1988 (NI) ('the Act') and the explanatory memorandum to the Bill for that Act that was provided to members of the Norfolk Island Legislative Assembly. The plaintiff's case 4 The Statement of Claim filed by the plaintiff alleges that the defendant is a corporation sole and was responsible, inter alia, for the establishment and management of the Norfolk Island National Park. It is further alleged that the defendant entered into a contract with a New Zealand company, Roadstone Construction Limited ('Roadstone'), for works associated with the upgrade of Mount Pitt Road, this road being apparently within or related to the national park. 5 The Statement of Claim alleges that Roadstone, 'under the supervision and control of the Defendant undertook the contract works by employing a subcontractor, Island Industries Pty Ltd ('Island Industries')'. Paragraph 6 of the Statement of Claim then alleges: 'At all material times Roadstone and Island Industries in carrying out their contracts were agents and/or servants of the Defendant'. 6 Paragraph 7 alleges that the plaintiff, at all material times, was an employee of Island Industries. Nonetheless, it is alleged (in para 8) that 'the Defendant exercised authority and control over those works and the Plaintiff' and (in para 9) that, at all material times, the defendant owed the plaintiff 'a duty of care to ensure that proper measures were taken to protect the health and safety of persons such as the Plaintiff who were working on the site at Mount Pitt Road'. 7 The Statement of Claim goes on to allege that, on 29 January 2003, in the course of the plaintiff's duties as an employee of Island Industries, a multi-tyred roller operated by him lost traction and rolled over, trapping him beneath. As a consequence, the plaintiff says, he suffered 'massive injuries loss and damage', including the loss of both legs above the knee and significant loss of eyesight. The defendant's argument 8 As counsel for the plaintiff have submitted, the first order sought by the defendant is, essentially, an order summarily dismissing the principal proceeding. The first order does not depend upon any alleged defect in the Amended Originating Application or the Statement of Claim. The essence of the defendant's argument is that this Court has no jurisdiction to hear and determine the plaintiff's claim. The lack of jurisdiction is said to arise out of the terms of s 43 of the Act. The Court will always be cautious in exercising its power to strike-out an action: see General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125. However, if it is correct to say that the Court lacks jurisdiction to hear the case, there is no point in allowing it to proceed. For the purposes of the first order sought by the defendant, the critical (and only) question is whether, on its true construction, s 43 of the Act bars hearing and determination of this action. The terms of the Act 9 Sections 5 and 6 are contained in Part 1 of the Act. They are in the following terms: 'Application 5. (1) Subject to this section, this Act applies where work is carried out by an employee in Norfolk Island, whether a contract was entered into or not, and whether the contract, if any, was entered into in Norfolk Island or elsewhere. (2) Where an employer is not ordinarily resident in Norfolk Island, an agent, officer or employee ordinarily resident in Norfolk Island of that employer is deemed, for the purposes of this Act, to be the employer where the agent, officer or employee – (a) is ordinarily in charge of the employer's business in Norfolk Island; or (b) has entered into a contract on behalf of the employer in Norfolk Island. (3) This Act applies where a contract for work to be carried out elsewhere than in Norfolk Island – (a) is made in Norfolk Island; and (b) the employer and employee under the contract are ordinarily resident in Norfolk Island. (4) Where a person is employed to carry out work in Norfolk Island under a contract made in a place elsewhere than Norfolk Island and the person performs no duties under the contract on land in Norfolk Island except duties that are incidental to the performance of the principal duties of the person under the contract, this Act does not apply. Persons to whom Act applies 6. (1) For the purposes of this Act, an employer may be a natural person, a body politic, a body corporate or unincorporated, a firm, an association, a partnership or club, the personal representative of a deceased employer or a partnership between 2 or more of them. (2) For the purposes of this Act, where a natural person enters into a contract of service as an employee with another person, whether or not a natural person, the other person is the employer of the first-mentioned person. (3) For the purposes of this Act, where a natural person enters into a contract (other than a contract of service) with another person, whether or not a natural person, the first-mentioned person is deemed to be an employee of the other person and the other person is deemed to be the employer of the first-mentioned person where –