Mulhall v Jonco Construction Services Pty Ltd
[2000] QDC 339
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Mulhall v Jonco Construction Services Pty Ltd[2000] QDC 339
- Add to List
Mulhall v Jonco Construction Services Pty Ltd[2000] QDC 339
Mulhall v Jonco Construction Services Pty Ltd[2000] QDC 339
DISTRICT COURT | No 1717 of 1997 |
CIVIL JURISDICTION
JUDGE BOULTON
JOHN LEONARD MULHALL | Plaintiff |
and
JONCO CONSTRUCTION SERVICES PTY LTD | Defendant |
BRISBANE
DATE 28/11/2000
JUDGMENT
HIS HONOUR: By an application filed 1 November 2000 the defendant applies for a number of orders, amongst them for leave to withdraw an admission contained in paragraph 3 of the entry of appearance and defence filed 21 May 1997 and the amended entry of appearance and defence filed 5 August 1998. The effect of the admission was that the plaintiff was at all material times employed by the defendant. The original plaint filed on 28 April 1997 had made such an allegation. It was as follows:
- “2.At all material times the plaintiff was employed by the defendant.”
The injury the subject of the action is said to have occurred on 5 October 1995. Following the incident, the Workers' Compensation Board took over the conduct of the defendant's case and caused the abovementioned admission to be made.
There is no direct evidence before me of the applications to the Workers' Compensation Board for weekly compensation. I merely observe that as a preliminary to the awarding of such compensation, the Board is provided with statements on behalf of the injured worker and routinely on behalf of the employer. However, the affidavit of Danielle Jane Watt sworn 3 November 2000 and filed by leave today states:
- “5.It has been over five years since the plaintiff was injured. Whilst initially paid weekly benefits by the Workers' Compensation Board, I am informed by the plaintiff and verily believe that he and his family have experienced severe financial difficulty since his workers compensation benefits ceased due to his inability to work as a result of his injuries.”
I believe I can infer from the fact of weekly compensation having been paid that both plaintiff and defendant led the Workers' Compensation Board to the view that the plaintiff, at the material time, was a “worker” under the Act.
A statement of loss and damage filed on behalf of the plaintiff on 11 September 1997 described the employer of the plaintiff between 1 July 1991 and 30 July 1996 as “J and C Mulhall Carpentry Service”. This statement must be construed in the light of its purpose being directed at the issue of quantum of economic loss. Apart from being very likely untrue, it does not seem to have enlightened the solicitors for the Board or put them on notice of a difficulty. However, later answers to interrogatories which were filed on 25 March 1999 did. Answers 3(f)(ii), (iii), and (iv) stated that in respect of three separate periods:
“The name and address of my employers was J and C Carpentry Services of 5 Warrigal Crescent, Ashmore as a permanent subcontractor to Jonco Construction Services Pty Ltd.”
Even this statement might be thought to be incorrect in the sense that the true situation may well have been that, during part at least of that period, the plaintiff was a partner of that particular partnership. However, the reference to a “permanent subcontractor to Jonco Construction Services Pty Ltd” must have caused alarm bells to ring and by a letter dated 13 September 1999 the solicitors for the Board wrote to the plaintiff's solicitors in these terms:
“It has come to the attention of our client during the course of disclosure that your client is precluded from the definition of a ‘worker’, as that term is defined by the Workers' Compensation Act 1990.
Our client has today given notice to the defendant that it is withdrawing indemnity for the claim for that reason, effective from today.
We have called upon the defendant to immediately contact any public liability insurer and to arrange indemnity for this claim.”
This withdrawal has plunged the action into a deal of confusion. On the present state of the pleadings, the plaintiff, if it succeeds against the defendant, would normally be entitled to indemnity by the Workers' Compensation Board or WorkCover, as it may now be known. As I've just indicated, WorkCover is refusing such indemnity.
On the basis that the plaintiff was a ‘worker’, he would not be entitled to be indemnified by a different public liability insurer such as MMI General Insurance Limited which is sought to be joined as a third party in these proceedings. I am informed from the Bar Table that the plaintiff might well be defeated by, in effect, falling between two stools if the defendant should prove unable to meet the damages that might be assessed in the litigation.
I have been referred by the plaintiff's counsel to a decision of the Court of Appeal in Rigarto Farms Pty Ltd and Kenneth Frank Ridolfi, Appeal Number 11448 of 1999. That case concerned a notice to admit facts. The solicitors failed to respond to the notice, whereupon, pursuant to the Uniform Civil Procedure Rules, there followed a deemed admission of such facts. On seeking to withdraw that deemed admission, the Chief Justice did not consider it to be appropriate in the circumstances to exercise a discretion in favour of the applicant.
However at page 20 of the decision of the Chief Justice, he made this comment of a general nature:
“There is no principle that admissions made, or deemed to have been made, may always be withdrawn ‘for the asking’, subject to payment of costs. The discretion is broad and unfettered, as exemplified by Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738 and Equus Corp Pty Ltd v Orazio (1999) QSC 354.”
As I have pointed out, that case concerned a failure on the part of solicitors to respond to a notice to admit facts and is not exactly in point. However, I am fortified by the statement of general principle of the Chief Justice to which I have just referred.
I have also been referred to a decision of Massey v Crown Life Insurance Company (1978) 2 AllER 576 and, in particular, a comment made by Lord Denning Master of the Rolls at page 581. That case had concerned a plaintiff who had adopted for taxation purposes a self-employed structure. The plaintiff in effect then sought to resile from that situation when confronted with the prospect of being deprived of the benefits of a ‘worker’ or an ‘employee’ as the term was in that case. Lord Denning, in the passage to which I have referred, pointed out:
“In the present case there is a perfectly genuine agreement entered into at the instance of Mr Massey on the footing that he is ‘self-employed’. He gets the benefit of it by avoiding tax deductions and getting his pension contributions returned. I do not see that he can come along afterwards and say it is something else in order to claim that he has been unfairly dismissed. Having made his bed as being ‘self-employed’, he must lie on it. He is not under a contract of service.”
That case, however, is distinguishable from the present one because the plaintiff in the present case would not be disadvantaged by not coming within the definition of worker under the Act. He would still, if that were the situation, be able to proceed against the defendant, who could then seek indemnity against MMI Insurances.
The principal consideration underlying this application is, in my view, the fact that the plaintiff and the defendant both contributed to the decision by the Workers' Compensation Board to pay weekly compensation in the first place and take over the conduct of the common law action in the second place.
It may be that the conduct of the Workers' Compensation Board or its solicitors can be criticised, in that closer examination of the statement of loss and damage may have revealed the problem at an earlier point of time. The answers, though, in that document to which I have referred are quite false and misleading and really failed to state the precise position.
Even the answers to interrogatories that were successful in disclosing the problem can be described as ambiguous. It seems to be strongly arguable that it would be unjust if WorkCover were required to indemnify the defendant at the end of these proceedings on the basis of an admission which was made, it seems, per incuriam and was not, in any real sense, of its own making.
The situation calls, in my view, quite persuasively for leave to withdraw that admission and I do grant such leave.