- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Geary v REJV Services P/L & Ors  QSC 289
JAMES LEONARD GEARY(plaintiff)
REJV SERVICES P/L
ACN 081 482 457
ZINIFEX CENTURY LIMITED
ACN 006 670 300
(second defendant/not a party to the application)
BRADKEN RESOURCES P/L
ACN 098 300 988
UNITED GROUP LIMITED
ACN 009 180 287
DOWNER EDI MINING P/L
ACN 004 142 223
(first third party/applicant)
CAPENA SURFACE MING P/L
ACN 062 450 113
(second third party/not a party to this application)
SC No 212 of 2008
Supreme Court at Townsville
11 September 2009
7 September 2009
1.Judgment for the third party Downer EDI Mining P/Lagainst the respondents REJV Services P/L, Bradken Resources P/L and United Group Limited in the third party proceedings instituted by them against the third party with costs to be assessed.
2.Actions SC No 212 of 2008 and SC No 550 of 2008 are to be heard together.
3.Otherwise the application is adjourned to a date to be fixed.
CIVIL LAW – APPLICATION – Where first defendant seeks judgement against the first, third and fourth defendants pursuant to r 293 of the Uniform Civil Procedure Rules 1999 – whether statement of claim of defendants discloses cause of action – where plaintiff seeks an order that the trials of action 550/08 and 212/08 be heard together – whether third parties owed a duty to the plaintiff
Uniform Civil Procedure Rules 1999 (Qld), r 293
Leighton Contractors Pty Ltd v Fox & Ors  HCA 35 relied upon
Sweeney v Boylan Nominees Pty Ltd  HCA 19; 226 CLR 161, considered
Andar Transport Pty Ltd v Brambles Ltd  HCA 28; 317 CLR 424, relied upon
Hoad v Peel Valley Exports Pty Ltd  NSW SC 981, considered
Hazeldeane’s Chicken Farm Pty Ltd v Victorian WorkCover Authority  VSCA 185, considered
Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd  QCA 135, applied
A Moon for the plaintiff
R Morton for the first third party/applicant
R Ashton for the first, third and fourth defendants
Connolly Suthers Lawyers for the plaintiff
Corrs Chambers Westgarth Lawyers for the first third party/applicant
MacDonnells Law acting as Town Agent for Dibbsbarker for the first, third and fourth defendants
- CULLINANE J: The third party applicant (Downer EDI Mining Pty Ltd) has applied for judgment pursuant to rule 293 of the Uniform Civil Procedure Rules against the first, third and fourth defendants who have joined it as a third party. Alternatively an order is sought that the third party statement of claim be struck out as not disclosing any reasonable cause of action or as being frivolous and vexatious.
- The plaintiff seeks certain directions in the proceedings but it is common ground that these should be adjourned apart from an application for an order that this action number 550/08 be tried with action no 212/08. There was agreement that this order should be made.
- The plaintiff alleges that he was injured on 17 August 2005 in the course of his employment with the first defendant.
- He was at the time engaged in driving a haul truck at Century Mine which mine is owned by the second defendant.
- It seems common ground that the plaintiff was seated in the driver’s seat of a haul truck when a large rock was dropped into the tray of the truck as a consequence of which it is alleged he sustained injury. The rock was dropped from the bucket of an excavator or shovel controlled by a co-employee. It is alleged that the fall of the rock was the consequence of a defectively manufactured wear plate and/or a defectively fitted bucket. The wear plate was manufactured by the third defendant and the bucket was fitted by the fourth defendant.
- The second third party is a company in administration and no steps have been taken against it.
- By its third party notice the defendants allege that the applicant and the other third party were parties to an alliance agreement with the second defendant, (the mine owner) pursuant to which the third parties would provide operational services to the second defendant. The services are said to be specified in schedule 6 of the agreement and are pleaded in paragraph 6 of the defendant’s statement of claim:
“(a)the maintenance & servicing of all the second defendant’s and the third parties’ plant fleet and equipment listed in schedule 15 and 16 respectively, including the cost of parts, components and service materials, including any escalation component in the supply costs of the parts, components & materials within the period of operation;
(b)the provision of all labour & supervision to carry out the maintenance of all of the second defendant’s and the third parties’ Plant Fleet & Equipment listed in Schedule 15 and 16 respectively including the control of stores and inventory.
(c)All dedicated management technical, commercial, administrative, supervisory, HR, safety and training personnel required to carry out the works and as agreed for each Period of Operation or as subsequently approved by the ALT (Alliance Leadership Team) during that Period of Operation and not provided by the second defendant under Item 9 of Schedule 5.”
- In paragraph 7 the respondents allege that the third parties formed and operated the first defendant as a vehicle for part of the performance of their obligations under the agreement, particularly to act as employer of the personnel engaged for work at Century Mine.
- Particulars have been provided of paragraph 7 and included in these particulars are particulars (d) to (j):
“(d)on page 5 of the Alliance Agreement, it is stated that Downer and Capena entered into the Alliance Agreement ‘as participants in the joint venture with the name Roche Eltin Joint Venture.’
(e)at all material times, Downer’s principal place of business and registered office was located at Level 7, 104 Melbourne Street, South Brisbane in the State of Queensland.
(f)at all material times, the first defendant’s principal place of business and registered office was care of Downer at Level 7, 104 Melbourne Street, South Brisbane in the State of Queensland.
(g)at all material times, the ultimate holding company of Downer was ‘Downer EDI Limited’.
(h)at all material times, the ultimate holding company of the first defendant was ‘Downer EDI Limited’.
(i)at all material times, Capena was the sole shareholder of the first defendant.
(j)pursuant to clause 4.2.2 of Part A of the Alliance Agreement, Downer and Capena were to be the primary providers of mining operation services as set out in schedules 2 and 6 of the Alliance Agreement.”
- The respondents’ statement of claim then alleges in paragraph 8:
“If the first defendant acted or omitted to act as alleged by the plaintiff, then it did so on behalf of and/or was caused so to act or fail to act by the third parties in the course of their management of the mine in accordance with their obligations referred to in paragraphs 5 and 6 of this statement of claim.”
- The parts of the pleading just referred to, in particular paragraph 8, form the basis of the allegation in paragraph 9 that the third parties owed a duty to the plaintiff to act and/or cause the first defendant to act with reasonable care for the safety of the plaintiff.
- Paragraph 10 then goes on to plead a breach of the alleged duty, the pleading picking up paragraph 12 of the plaintiff’s statement of claim which particularises the negligence, breach of duty and breach of statutory duty alleged against the first defendant employer.
- On this basis a claim for indemnity or contribution is made against the applicant third party.
- There are thus two bases upon which it is alleged the applicant third party is legally liable for the acts or omissions of the first defendant employer.
- The first is that the first defendant in doing or failing to do what it is alleged it did or failed to do was acting on behalf of the applicant third party and the second is that the applicant third party caused the first defendant to act or omit to act in the way that it did.
- As will be seen from the particulars it is alleged that the second third party was the sole shareholder of the first defendant and that the ultimate holding company of the applicant third party and the first defendant was a company, Downer EDI Limited. It was also alleged that the principal place of business and registered office of the applicant third party and the first defendant was the same.
- It is not alleged that the third party applicant was not a shareholder of the first defendant.
- The applicant contends that on the facts as pleaded the claim against the third parties has no real prospect of success.
- In relation to the first basis the applicant placed reliance upon the recent judgment of the High Court in Leighton Contractors Pty Ltd v Fox & Ors  HCA 35.
- In its joint judgment the court said at paragraph 22:
“In particular, and as was emphasised in Sweeney, the authorities in this court do not support any principle that ‘A is vicariously liable for the conduct of B if B ‘represents’ A(in the sense of B acting for the benefit or advantage of A).’ Earlier, in Scott v Davis the court refused to recognize an “agent” in a non-technical sense as an actor attracting principles of vicarious liability.”
- Earlier in Sweeney v Boylan Nominees Pty Ltd  HCA 192; 26 CLR 161, the High Court had emphasised the difference in law between an employee and an independent contractor as far as the principles of vicarious responsibility are concerned: Gleeson CJ, Gummow, Hayne, Hayden and Crennan JJ said in their joint judgment at page 167, paragraph 13:
“Whatever may be the justification for the doctrine, it is necessary always to recall that much more often than not, questions of vicarious liability fall to be considered in a context where one person has engaged another (for whose conduct the first is said to be vicariously liable) to do something that is of advantage to, and for the purposes of, that first person. Yet it is clear that the bare fact that the second person’s actions were intended to benefit the first or were undertaken to advance some purpose of the first person does not suffice to demonstrate that the first is vicariously liable for the conduct of the second. The whole of the law that has developed on the distinction between employees and independent contractors denies that benefit or advantage to the one will suffice to establish vicarious liability for the conduct of the second. But there is an important, albeit distracting, consequence that follows from the observation that the first person seeks to gain benefit or advantage from engaging the second to perform a task. It is that the relationship is one which invites the application of terms like “representative”, “delegate” or “agent”. The use of those or other similar expressions must not be permitted to obscure the need to examine what exactly are the relationships between the various actors.”
- I accept the argument of the applicant so far as the first of the two grounds referred to above is concerned. There is nothing in the factual matters pleaded by the respondents in their statement of claim which would arguably take the matter out of the general principles stated in the authorities set out above.
- As far as the second ground is concerned, the defendants have provided particulars of paragraph 8:
“The defendants repeat and rely upon the allegations contained in paragraph 1 herein and state that if the first defendant acted or omitted to act as alleged by the plaintiff, then it did so on behalf of and/or was caused so to act or fail to act by Downer and Capena pursuant to clause 5.1 of the Joint Venture Agreement in the course of Downer and Capena’s management of the mine.”
- The matters referred to in paragraph 1 of the particulars relate to paragraph 7 of the defendant’s statement of claim.
- These have been set out in these reasons and in so far as they have not they relate to the contract between the third parties and the second defendant. The pleadings relating to this matter have been set out.
- In summary then the allegation is that by virtue of an alleged control of the first defendant the applicant third party had a duty to the plaintiff to cause the first defendant to act with reasonable care for the safety of the plaintiff which duty was breached, causing the first defendant to act in the manner pleaded by the plaintiff in paragraph 12 of his statement of claim.
- The applicant contends that taking these allegations as being established they cannot give rise to a duty of care on the part of the applicant third party to an employee of the first defendant.
- It is noted that although the first defendant and the applicant third party have the same controlling parent in a corporate structure and although it is alleged that the first defendant was created by the third parties as a vehicle for their performance of their obligations under the agreement to the second defendant, (particularly to act as employer of the personnel engaged for work at Century Mine) it is not alleged that the third party had any shareholding in the first defendant.
- Reliance was placed by the applicant upon the judgment of the High Court in Andar Transport Pty Ltd v Brambles Ltd  HCA 28; 317 CLR 424.
- In that case Andar had subcontracted to Brambles to deliver laundry to a hospital. To perform its work under the contract it had to use trolleys supplied by Brambles which proved to be defective. One Wail was a director of Andar responsible for the performance of the Brambles work. He was injured because of the defective trolleys and successfully sued Brambles.
- Brambles sought to join Andar to obtain contribution on the basis that Andar was in breach of its obligations as employer to Wail as its employee. Andar sought to avoid liability by arguing that it was the injured employee (as director) who had devised the system of work and that he had no claim against Andar and therefore the claim for contribution would fail.
- The High Court emphasised the nature of the duty which the common law imposes upon an employer to an employee. At page 44, the majority (Gleeson CJ, McHugh, Gummow, Hayne, and Hayden JJ) said at paragraph 44:
“Unlike the statutory duties construed in Ginty and its successors, the common law duty to take reasonable care for the safety of employees is imposed solely upon the employer---”
- Later the court pointed out the distinction between the duty owed by a corporation employer and those owed by directors or employees in their capacity as director or employee. For present purposes what is relevant is what the majority had to say (paragraph 49) about the distinction between the duty of the corporate employer to an employee and the duty of individual directors of that employer.
“In this way, it is possible here to distinguish between the common law duties owed by Andar and those owed by Mr Wail in his personal capacity as director or employee. The common law duty to take reasonable care for the safety of employees is imposed directly upon Andar by virtue of its status as an employer. (The duties which directors have are different. For the most part, they are found in the applicable corporations law, and are owed to the company, not others.)”
- Counsel for the respondent sought to place some reliance upon cases dealing with labour hire employers and host employers such as Hoad v Peel Valley Exports Pty Ltd  NSW SC 981 and Hazeldeane’s Chicken Farm Pty Ltd v Victorian WorkCover Authority  VSCA185.
- In circumstances such as existed in those cases, the courts have imposed a duty of care to the employee by both the labour hire firm and the host employer.
- There is however nothing in the circumstances pleaded here which would on any view place the circumstances of this matter in that category of case.
- In my view the facts which have been pleaded do not arguably take the matter out of the general principles referred to above.
- I take the relevant principles on an application under rule 293 to be those stated in Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd  QCA 135 namely whether there is any real prospect of success as opposed to a fanciful or remote prospect of success.
- It is axiomatic that a court should not be over ready to reach such a conclusion because of the consequences to the respondents who would be denied the opportunity of a trial.
- However it seems to me that this case meets the test applicable to an application for judgment under the rule. I have formed the conclusion that the defendant respondents on the statement of claim delivered by them as amplified by the particulars provided do not have any real prospects of success in the action.
- I give judgment for the third party Downer EDI Mining Pty Ltd against the respondents REJV Services Pty Ltd, Bradken Resources Pty Ltd and United Group Limited in the third party proceedings instituted by them against the third party with costs to be assessed.
- I order that actions number 212/08 and 550/08 be heard together.
- I order that otherwise the application be adjourned to a date to be fixed.
- Published Case Name:
Geary v REJV Services P/L & Ors
- Shortened Case Name:
Geary v REJV Services Pty Ltd
 QSC 289
11 Sep 2009
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 289||11 Sep 2009||-|
|Appeal Determined (QCA)|| QCA 35||26 Feb 2010||-|