District Court New South Wales Medium Neutral Citation: Chapman v Dickinson [2018] NSWDC 359 Hearing dates: 19 October 2018 Date of orders: 19 October 2018 Decision date: 27 November 2018 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Defendants' Amended Notice of Motion filed on 19 October 2018 dismissed. (2) Defendants pay plaintiff's costs. (3) Liberty to apply in relation to costs. (4) Parties to bring in short minutes of order for the future conduct of these proceedings. Catchwords: PRACTICE AND PROCEDURE – application for separate trial (r 28.2 Uniform Civil Procedure Rules 2005 (NSW)) as to whether the plaintiff was a "worker or deemed worker by reason of the Workplace Injury Management and Workers Compensation Act 1998 and/or the Workers Compensation Act 1987" – criteria for ordering a separate trial of issues, contrary to the general practice of determining all issues at the same time – absence of agreed facts – issue not suited to severability – application for separate trial refused Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), ss 38 and 192A Uniform Civil Procedure Rules 2005 (NSW), r 28.2 Workers Compensation Act 1987 (NSW) Workers Compensation Commission Rules 2001 (NSW), Part 11 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 60, 280A and 315 Cases Cited: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Bailey v Director‑General Department of Natural Resources [2013] NSWSC 515 Blair v Curran (1939) 62 CLR 464 Kashyap v Sydney Local Health District [2014] NSWSC 182 Langley v AMP Capital Investors Ltd [2007] NSWSC 937 LPD Holdings (Aust) Pty Ltd v Russells [2017] QSC 45 On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 Street v Luna Park Sydney Pty Limited [2007] NSWSC 697 The Star Pty Ltd v Mitchison [2017] NSWCA 149 Category: Procedural and other rulings Parties: Plaintiff: Christopher Chapman First Defendant: Justin Dickinson Second Defendant: Annette Patrick trading as White Heavy Haulage Representation: Counsel: Plaintiff: Mr R Goodridge Defendants: Mr A J Parker Solicitors: Plaintiff: Firths The Compensation Lawyers Defendants: McInnes Wilson File Number(s): 2017/265257 Publication restriction: None Judgment The application before the court 1. The defendants by Amended Notice of Motion filed on 19 October 2018 seeks the following orders: 1. Pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW), the question of whether the plaintiff was a "worker or deemed worker by reason of the Workplace Injury Management and Workers Compensation Act 1998 and/or the Workers Compensation Act 1987" be severed and listed for separate hearing to the question of the liability and quantum of the plaintiff's damages, if any. 2. Costs of the motion be costs in the cause. 3. Any such further or other order that the Honourable Court deems fit. 1. The defendants rely upon the affidavit of John Brophy Renshaw dated 14 August 2018 (Exhibit B) and Adam Mason Abboud dated 18 October 2018 (Exhibit A). 2. The plaintiff relies upon the affidavit of Evan Griffiths dated 12 October 2018 (Exhibit 1), solicitor for the plaintiff, who is briefly cross-examined. Background 1. These are proceedings for personal injury arising out of an accident the plaintiff suffered whilst helping to clean up the defendants' premises after a fire. The circumstances of this claim are unusual, in that the plaintiff and the defendants described a relationship which each seems quite certain did not amount to any form of employment. 2. Ms Patrick who has operated White Heavy Haulage for the past 46 years as a sole trader, the second defendant to these proceedings, describes in her affidavit how her husband befriended the plaintiff at an auction, with a result that they became friendly. The plaintiff told Ms Patrick's husband that he was in a desperate financial position and living in a Kennards Hire space (in other words, in a warehouse). He was unemployed, had lost touch with his family, and needed somewhere to stay. He also needed somewhere to store the equipment and machinery that was a joint interest to Ms Patrick's husband and the plaintiff, in that both were regular attendees at auctions where they would pick up items, some of which Ms Patrick's husband sold for profit. Out of sympathy, Ms Patrick's husband allowed him to store his equipment and machinery at Ms Patrick's business premises. 3. The plaintiff began to come to the premises to pick up or store his equipment and then, "of his own accord and without any invitation", according to paragraph 19 of her statement, started doing odd jobs "as a show of gratitude to my husband for taking sympathy to his living situation, even though he was never asked to do any such tasks". Ms Patrick said that these visits were "sporadic and without notice". Since Ms Patrick felt sorry for him, she would give him money if he did any work. This was cash and it was on a discretionary basis. She did not ever pay him more than $100 at a time. He was never asked to perform any services or work; it just happened. 4. Ms Patrick said it was obvious the plaintiff had what she called "a mental condition of some sort". In fact, she said, he became a liability and a concern around the premises because of his lack of awareness of safety. She added that "we tried to get rid of him many times but he simply kept coming into the yard of his own accord, at random times". Shortly after his injury on 1 September 2014, however, he stopped coming. 5. Mr Dickinson, the first defendant, has worked in the business of White Heavy Haulage from the age of 15 and for the past 30 years. He is the son of Ms Patrick. Like Ms Patrick, he states that the plaintiff became friendly with his father and they would go to auctions together. They would buy truck-related items at auctions and these would be transported to the White Heavy Haulage business premises. This continued until Ms Patrick's husband died in December 2013. 6. Mr Dickinson describes how the plaintiff, while continuing to live out at the Kennards rent-a-space and showering at a halfway house, had strong feelings of gratitude to his father for his assistance. At some stage the plaintiff had obtained a key to the premises and would come in at bizarre hours such as the middle of the night. 7. Mr Dickinson, like his mother, describes the plaintiff as "not all there mentally". He said the plaintiff was "a liability in the yard more than anything, due to his lack of regard for his own safety and the hazards that naturally arise in the context of a trucking yard". He recalled the plaintiff assisting with the cleaning up and suffering an injury. 8. Following the provision of these signed statements, the defendants were interviewed by the solicitor for the defendants. This resulted in the answers which Mr Parker described as "the high point" of his case, namely the answers to questions where Ms Patrick and Mr Dickinson describes the plaintiff carrying out sporadic work for which he was paid cash in hand, such as fixing the fence, collecting scrap, loading the table top and delivering scrap. The plaintiff does not appear to have attended toolbox meetings, but had a copy of the site safety manual provided to employees. In addition, Ms Patrick continued to give him money after he suffered in the injury even though he was not performing any work. The circumstances of the injury 1. The circumstances of the injury are relevant to the application before me. 2. The plaintiff assisted with the cleaning up after a fire at the yard in Kingswood. There is little information about how he came to be there, but he was clearly assisting Ms Patrick and the other workers. As he was pulling some chains, he sustained a significant crush injury to the dorsal aspect of his left forearm with a fracture of the radius. 3. This was a significant crush injury on his wrist and hand, including an extensive degloving. Dr Patrick (report of 25 June 2018) states that the plaintiff is totally and permanently incapacitated for work, although noting that the plaintiff is now 65 years of age. Dr Patrick gives a percentage of 33% whole person impairment. Dr Teoh (report of 12 July 2018) gives a history wholly at variance with the description of the defendants, although noting that the plaintiff had a brief history of depression "a few years ago". He gives a 22% whole person impairment. The circumstances leading to this application 1. The Statement of Claim alleges: "4. At all material times, the Plaintiff was a personal friend of the Second Defendant, and her late husband. As such, from time to time the Plaintiff offered assistance to the Second Defendant in the furtherance of her business, including clean up yards that had become inundated with unused plant and equipment. 5. On 1 September 2014, the Plaintiff was providing such assistance to the First Defendant, by helping him to remove refuse [sic] that had been irreparably damaged by fire at the Kingswood yard." 1. The Defence sets out: 1. The defendants alleged that the plaintiff was a deemed worker (paragraph 3(e) and paragraph 21); 2. The defendants alleged that the plaintiff had not satisfied the various statutory requirements to commence proceedings against his employer pursuant to the Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW). 1. By way of Reply dated 2 May 2018, the plaintiff averred that he was not a worker or deemed worker within the meaning of the Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW). 2. As is set out in the correspondence attached to the affidavit of Mr Abboud, this application was triggered by the announcement, by the plaintiff's solicitors, of their intention to commence proceedings in the Workers Compensation Commission which the defence asserts prevent the bringing of this claim. In other words, the plaintiff proposes to bring a claim for lump sum compensation in accordance with s 280A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), this being a precondition to any claim for damages, as no such claim has been made as required by s 60 of the Act. He also proposes to serve the necessary pre-filing statement in accordance with s 315 Workplace Injury Management and Workers Compensation Act 1998 (NSW). 3. However, what concerns the defendants is that the plaintiff proposes to tell the Workers Compensation Commission that he was not an employee and, moreover, the defendants propose to concur with this finding. Any finding by the Commission on this issue will then operate as an issue estoppel on the defendants in the District Court proceedings and this is the reason for the application now being before the court. 4. Mr Griffin, the solicitor for the plaintiff, has deposed, in his affidavit of 12 October 2018, to the plaintiff being "now in a position to refer the matter to the Workers Compensation Commission seeking a declaration as to whether he is a "worker" or "deemed worker" within the meaning of the workers compensation legislation, as asserted by the defendant in its defence and contrary to the statements [summarised] above". Mr Griffin goes on to say that Part 11 of the Workers Compensation Commission Rules 2001 (NSW) means that "there is no impediment to the second defendant's insurer seeking to be joined to the workers compensation proceedings in due course". 5. Although Mr Parker initially submitted that the Workers Compensation Commission would simply dismiss the proceedings on the basis that there was disputed issue of fact for the Commission to determine, he acknowledged that this would not amount to an estoppel unless there was an actual decision, as opposed to a dismissal of the claim (LPD Holdings (Aust) Pty Ltd v Russells [2017] QSC 45, citing Blair v Curran (1939) 62 CLR 464). 6. The real problem is that the Civil Liability Act insurer cannot be a party in the Workers Compensation Commission (although there is a procedure for notification described in the affidavit evidence of Mr Griffin, the solicitor for the plaintiff). Mr Parker, for the defendant, submits that cross-examination and other methods of challenging the evidence of not only the plaintiff but the defendants by the Civil Liability Act insurer would not be possible. Accordingly, the defendant seeks a separate trial on the issue as to whether the plaintiff is employed. The relevant principles of law 1. Rule 28.2 Uniform Civil Procedure Rules 2005 (NSW) provides: "28.2 Order for decision The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings." 1. In Kashyap v Sydney Local Health District [2014] NSWSC 182, Harrison AsJ set out the following criteria in relation to the ordering of a separate hearing of issues: "[14] In determining whether to order separate determination of issues, the court ought take into account the following: (a) Will the determination of the question in one way bring the proceedings to an end, thereby obviating the expensive determination of the remainder of the hearing? (b) Will the determination of the question in one way likely give rise to a strong prospect that the parties would agree upon the result if the core of their dispute is decided (Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334)? (c) Will there be underlying credit issues that will impact on the separate question and the remainder of the hearing that render separate determination futile (King v Griffiths [2013] NSWSC 808)? (d) Whether separate determination would give effect to the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings (Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464)? (e) Is there a bright line between the issues raised in the separate trials? (f) Two appeals or one?" 1. Mr Parker noted that the question of whether an employee's injury occurred in the course of his employment was the subject of a separate trial order in The Star Pty Ltd v Mitchison [2017] NSWCA 149. He drew my attention to the description by Payne JA of the nature of the application before the trial judge where "his Honour determined on a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that injuries the respondent suffered on the applicant's premises did not occur in the course of his employment, nor arise out of his employment" (at [3]). The circumstances of the filing of that application are set out in [15]-[16] of Payne JA's judgment. The nature of the hearing is described in [21]-[22] as follows: "21 It was common ground at hearing that the injury had occurred during an interval between two discrete periods of work. The primary judge referred to the principles stated in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473; [1992] HCA 21 and Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41. 22 The primary judge found that the respondent's injury did not occur whilst the respondent was in the course of his employment, nor did the injury arise out of his employment. In coming to this conclusion, the primary judge placed emphasis on the following findings of fact: (1) the employer did not require the respondent to attend the nightclub opening; (2) the employer had no expectation that the respondent would attend the nightclub opening; and (3) the respondent had no knowledge that the nightclub was owned and operated by his employer." 1. Mr Parker also referred me to [60]-[62] as follows: "60 The applicant submitted that there was an irony in the present case in that the respondent when injured had immediately claimed and been paid workers compensation. 61 The present claim for common law damages against his former employer, however, was based upon a foundation that the respondent was not entitled to be paid workers compensation. So much may be accepted. 62 No doubt those advising the respondent have advised him that if he is successful in obtaining the relief he seeks in these proceedings, he will have established that he was paid workers compensation on the mistaken basis that he was entitled to those payments. The applicant's workers compensation insurer would be entitled at common law to be repaid because of the mistake: David Securities v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48. Whether, prior to obtaining any payment of common law damages, the respondent would have any defence to a claim seeking repayment of the workers compensation he had been paid, cannot be determined in these proceedings: cf Tran v Vo [2017] NSWCA 134." 1. However, while the judgment in The Star Pty Ltd v Mitchison followed upon the ordering of a separate trial under r 28.2 UCPR was the subject of appeal (which was dismissed), the suitability of such a question for a separate trial was not discussed. I note in any event that the factual issues in that case were largely the subject of agreement, whereas in the present case not only are the facts properly in dispute, but Mr Parker conceded that it may be necessary, given his client's evidence, to seek leave under s 38 Evidence Act 1995 (NSW) to cross-examine them concerning the inconsistencies in their own evidence. 2. When exercising the power under r 28.2, careful regard must be had to a number of principles. These include not only the overriding purpose to facilitate the "just, quick and cheap" resolution of the real issues in the proceedings pursuant to s 56 Civil Procedure Act 2005 (NSW), but also to have regard to the general practice that all issues in the proceedings should be tried at the same time, particularly in cases such as the present, where credit is such an important issue (as to which see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 and Langley v AMP Capital Investors Ltd [2007] NSWSC 937 at [27]. The separate determination of an issue remains an exceptional course, as opposed to the usual course: Street v Luna Park Sydney Pty Limited [2007] NSWSC 697 at [5]. Analogous provisions relate to s 192A Evidence Act 1995 (NSW): Bailey v Director‑General Department of Natural Resources [2013] NSWSC 515. 3. Looking at the checklist in Kashyap v Sydney Local Health District, it is difficult to see how such an application can be made where the underlying credit issues that will impact on the separate question and the remainder of the hearing must render separate determination futile. The likelihood of an appeal from the finding of the kind which occurred in The Star Pty Ltd v Mitchison seems high. Although it was submitted there was a "bright line" between the issues raised in the separate trials, the circumstances of the plaintiff's injury seem inextricably entwined with the circumstances of his asserted employment. Although Mr Parker appeared confident that the hearing could be achieved in a check and speedy fashion, he acknowledge that a three day hearing was likely, given the degree of cross-examination and credit issues. 4. However, the difficulties with the defendants' submissions may be summarised as follows: 1. There is no prospect of an agreed set of facts, and the question requires findings of fact on matters likely to be contentious in relation to the remaining issues in proceedings. This is particularly the case in relation to credit, as the credibility of witness material may need to be dealt with by another judge. 2. The application does not really resolve the issue. There is an inherent inconsistency in the defendants taking the position that the plaintiff is a worker while wanting him to defer a finding to that effect (and the resultant necessary trip to the Workers Compensation Commission for the appropriate findings) until after the District Court proceedings are concluded. 3. The defendants' application assumes that the Workers Compensation Commission will simply "rubber stamp" the statements by the plaintiff and the defendants that the plaintiff is not an employee and will fail to go into the issue. Whether or not the Civil Liability Act insurer participates in any way in the proceedings in the Workers Compensation Commission, that is an unfair assessment of the process which must occur for a declaration to be pronounced. 4. The proposal set out in the motion is impractical. The hearing of the separate trial would take approximately three days, as Mr Parker acknowledges, and would require cross-examination of all the witnesses who would give evidence in relation to the other issues in circumstances where the credit of all witnesses will be a significant issue. Nor is it the case that the plaintiff could only be an employee. There may be other issues for determination such as whether he was an occupier, an invitee and entrant under contract, an entrant coupled with an interest, a licencee independent contractor or non-contractor or even a trespasser (having regard to the attempts made by both Mr Patrick and Mr Dickinson to discourage him from attending). 1. The application creates significant case management difficulties for the court. 2. Courts are generally reluctant to sever issues of this nature. In On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366. Bromberg J considered that the desirability of determining a question of independent contractor or employee was "problematic" and without clear boundaries. Bromberg J considered that the court needed to look beyond the actual agreement to what his Honour called "the real substance or reality of the relationship involved", the parties' roles and functions and the work practices over the history of the totality of the relationship. That is best done in a trial of the whole of the issues. 3. Finally, there is a very real possibility that the resolution of the separate issue will not finally determine the issue but merely result in an appeal from that decision in relation to that separate issue, creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation. 4. In addition, the possibility of findings of fact of a contentious nature in relation to the remaining issues of the proceedings, particularly given the importance of credibility findings, is high. Mr Goodridge, in his outline of submissions, notes that the defence filed in these proceedings is inconsistent with admissions made by the defendants. 5. Nor is there any likelihood that a three day hearing could be determined in advance of workers compensation proceedings. There is nothing to stop the plaintiff from continuing with his application for a hearing in the Workers Compensation Commission and it is possible that this application may be heard and determined before the court if the court is able to arrange for the three day hearing necessary to determine the separate trial issue. Essentially, what the Civil Liability Act insurer seeks to do is to preserve a forensic advantage, namely the plaintiff's asserted failure to commence proceedings in Workers Compensation Commission in relation to the issue of whether or not he is an employee. That is not a proper basis for the making of an order for a separate trial. 6. Taking all of the above in account, the defendant's notice of motion should be dismissed with costs. 7. The parties are at liberty to bring in short minutes of order concerning the future conduct of these proceedings. Orders 1. Defendants' Amended Notice of Motion filed on 19 October 2018 dismissed. 2. Defendants pay plaintiff's costs. 3. Liberty to apply in relation to costs. 4. Parties to bring in short minutes of order for the future conduct of these proceedings. ********** I certify the preceding 37 paragraphs and 4 ordersto be a true copy of her Honour Judge Gibson'sreasons for decision dated 27 November 2018 ………………………………………. (Associate) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2018