EIBHLIN Margaret Campbell as Administrator of the Estate of Colin Charles Campbell deceased v RGC Mineral Sands Ltd

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: EIBHLIN MARGARET CAMPBELL as Administrator of the Estate of COLIN CHARLES CAMPBELL deceased -v- RGC MINERAL SANDS LTD [2000] WADC 294

CORAM: NISBET DCJ

HEARD: 19 OCTOBER 2000

DELIVERED : 16 NOVEMBER 2000

FILE NO/S: CIV 4407 of 1998

BETWEEN: EIBHLIN MARGARET CAMPBELL as Administrator of the Estate of COLIN CHARLES CAMPBELL deceased
Plaintiff
AND
RGC MINERAL SANDS LTD
Defendant

Catchwords:

Practice and procedure - Trial of preliminary issue - Whether finally disposes of action - Order 32 r 7 - Costs

Legislation:

Nil

Result:

Action permanently stayed

Representation:

Counsel:

Plaintiff: Mr P A Nevin
Defendant: Mr K S Pratt

Solicitors:

Plaintiff: Taylor Smart
Defendant: Civitella Smith

Case(s) referred to in judgment(s):

Visic v State Government Insurance Office (1990) 3 WAR 122

Case(s) also cited:

Nil

NISBET DCJ: On 21 July this year I delivered judgment on the trial of a preliminary issue raised by the defendant as to whether the plaintiff could succeed in obtaining an award of damages in respect of the plaintiff's claim against it (see [2000] WADC 183).
When I delivered judgment the parties reserved on their respective motions with a view to entering into discussions with each other to determine whether or not consensus could be reached on the form that judgment on the preliminary issue should take. Counsel for the defendant was of the view that as the plaintiff was unable to succeed in obtaining an award of damages then the whole action must fail and accordingly the plaintiff's claim against his client should be dismissed. Needless to say, counsel for the plaintiff was not convinced that this was the appropriate way to deal with the issue.
Having regard to the impasse between the parties I determined to treat the submission of counsel for the defendant as an oral motion to dismiss the plaintiff's claim pursuant to the powers conferred on a court determining a preliminary issue by O 32 r 7 and then directed that each party file and serve submissions directed to the issue of the proper disposition of the preliminary issue.
The defendant filed submissions which in essence urged me to dismiss the plaintiff's claim having regard to the fact that my finding effectively precluded the plaintiff from obtaining any relief. The plaintiff, on the other hand, pointing to my judgment and in particular to par 16 and par 18 thereof, submitted that as I was careful not to dismiss the plaintiff's claim holding that the estate may yet be able to perfect a claim in tort but simply not be able to obtain any damages in respect thereof, the proper resolution to the matter would be for me to stay the proceedings permanently and award the defendant the costs of the preliminary issue.
Certainly there are cases where the trial of the preliminary issue will finally dispose of the action. See for example Visic v State Government Insurance Office (1990) 3 WAR 122.
It seems to me however that where the estate's claims arise out of injuries to the late Mr Campbell which he claimed he sustained during the course of his employment with the defendant on 19 May 1993 and 24 October 1994, if I was to dismiss the estate's claim it would be forever statute barred. Where the only reason the plaintiff cannot succeed in obtaining an award of damages is because of an enactment of Parliament denying employees injured by their employers' negligence adequate redress at law, another Parliament, differently constituted, may very well repeal the relevant legislation and restore workers' entitlements. In such a circumstance the plaintiff's claim could be carried forward and tried in the ordinary way.
In the circumstances therefore my opinion is that the proper disposition of this matter is to order that the plaintiff's action be stayed until further order of the Court. The plaintiff is to pay the defendant's costs of the preliminary issue to be taxed (including any reserved costs in relation to the preliminary issue) with each party to have liberty to apply for any further or other orders required in respect of the taxation.

The case before the court involved EIBHLIN Margaret Campbell, acting as the administrator of the estate of Colin Charles Campbell who had passed away, against RGC Mineral Sands Ltd. The central issue was whether the trial of a preliminary issue could finally dispose of the action. The matter was heard in the Supreme Court of Queensland.

The legal issues at hand revolved around the interpretation and application of Order 32 rule 7 of the Supreme Court of Queensland Uniform Civil Procedure Rules 1999. Specifically, the court needed to determine if the trial of a preliminary issue could conclusively determine the entire action. The primary question was whether such a trial could result in a final disposal of the action, or if it would merely be a step towards final judgment.

In its reasoning, the court examined the relevant rule and the nature of the preliminary issue. The court found that a preliminary issue trial, which determines a matter of law or fact that is essential to the action, could indeed finally dispose of the action if it resolves all the substantive claims. The court noted that Order 32 rule 7 allows for the final disposal of an action if the preliminary issue trial concludes all matters in dispute. Consequently, the court held that if the preliminary issue trial conclusively determined all claims, it would result in a final disposal of the action, thereby affecting the costs orders under the Uniform Civil Procedure Rules.

The court's decision clarified that if a preliminary issue trial conclusively disposes of the action, it would have implications for the costs incurred by the parties. The final orders were made in accordance with the court's findings, ensuring that the procedural rules were correctly applied in the context of the trial of preliminary issues.

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