Mark Wayne Baggs v Waratah Engineering Pty Limited ACN 001 891 729 [2012] NSWDC 199

District Court New South Wales

Medium Neutral Citation: Mark Wayne Baggs v Waratah Engineering Pty Limited ACN 001 891 729 [2012] NSWDC 199 Hearing dates: 11 October 2012 Decision date: 02 November 2012 Before: F Marks ADCJ Decision: 1. Motion is dismissed. 2. Costs reserved. Catchwords: Employee injured in motor vehicle accident in New Zealand - whether law of NSW applies to proceedings claiming damages against employer - whether employee a coal miner while travelling to a coal mine - held Court has jurisdiction Legislation Cited: Workers Compensation Act 1987; Acts Interpretation Act 1987 (NSW); Coal Mines Regulation Act 1982 Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, Harrison v Melhem [2008] NSWCA 67; Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11, Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272; Fenton v ATF Mining Electrics Pty Ltd (2004) 1 DDCR 744 Category: Interlocutory applications Parties: Mark Wayne Baggs (Plaintiff) Waratah Engineering Pty Limited ACN 001 891 729 (Defendant) Representation: S B Lowe (Defendant/Applicant on Motion) J E Sexton SC (Plaintiff/Respondent on Motion) Moray & Agnew (Defendant/Applicant on Motion) Lee Sames Egan (Plaintiff/Respondent on Motion) File Number(s): 2012/42734 Publication restriction: Nil

Judgment 1By Statement of Claim the plaintiff Mark Wayne Baggs claims damages for negligence from his employer, the defendant in the proceedings, Waratah Engineering Pty Limited. The defendant carried on business involving inter alia the manufacture repair and maintenance of mining equipment including underground mining and provided on-site training and the preparation of operational procedures and guidelines for the purpose of carrying out mining activities. Relevantly, the defendant conducted its business from premises in New South Wales. The plaintiff as part of his work duties was directed by the defendant to travel to the Pike River coal mine in New Zealand together with another employee. On the afternoon of 11 July 2010, a vehicle which was being driven by the other employee for the purpose of taking both him and the plaintiff to the Pike River mine left the road and crashed. The other driver died and the plaintiff sustained serious injuries. In these proceedings he seeks damages based on the alleged negligence of the driver, for which the defendant employer is said to be vicariously liable. 2The defendant has asserted that there is no entitlement in the plaintiff to bring proceedings claiming damages in this court, or at all. The basis for this assertion is the existence in New Zealand of certain no-fault accident legislation which precludes the bringing of claims for damages. The plaintiff asserts that by reason of the provisions of the Workers Compensation Act 1987 ("the Act"), the claim for damages can be brought in New South Wales, and indeed, the laws of New South Wales apply to the exclusion of the laws of any other jurisdiction. 3Furthermore, the plaintiff asserts that he is a coal miner for the purpose of the Act and that he is entitled to have damages assessed on a more favourable basis than would otherwise apply. 4These two issues, namely jurisdiction and the appropriate law, and whether the plaintiff is a coal miner are matters of fundamental significance to the parties for reasons which are obvious. Neither party wishes to waste resources and incur costs if this court has no jurisdiction. If the plaintiff is not a coal miner for the purposes of the Act, then, as was candidly conceded by his counsel, it may not be worth his while pursuing the claim. I was told that neither issue in the circumstances of these proceedings has previously been dealt with by any court. 5In these circumstances both parties urged me to determine these issues as preliminary issues. I raised with counsel for both parties the usual principles which apply in summary strikeout applications, having regard to cases such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69. The parties have filed an agreed Statement of Facts and both counsel submitted that there were sufficient facts established to enable the court to decide both these matters as separate issues in the proceedings. Whilst I have some misgivings about proceeding in this way I am persuaded that I should do so because common sense dictates that if at all possible both parties should be spared the unnecessary expense and delay of otherwise preparing the proceedings for a full hearing.