DISTRICT COURT OF QUEENSLAND - archive.sclqld.org.au
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DISTRICT COURT OF QUEENSLAND
CITATION: Woolworths Limited v Day & Others [2016] QDC 81
PARTIES: WOOLWORTHS LIMITED ACN 000 014 675
(applicant)
v
OLGA DAY
(first respondent)
and
CPM AUSTRALIA PTY LTD ACN 063 244 824
(second respondent)
and
RETAIL ACTIVATION PTY LTD ACN 111 852 129
(third respondent)
FILE NO/S: 224/16
DIVISION: Civil
PROCEEDING: Application
ORIGINATING
COURT: Brisbane District Court
DELIVERED ON: 23/03/2016
DELIVERED AT: Brisbane
HEARING DATE: 22/02/2016
JUDGE: Kingham DCJ
ORDER: 1. The date for the compulsory conference is set at 22
April 2016.
2. On or before 15 April 2016, Woolworths must
provide Mrs Day with the information requested
on 14 October 2015 by Q16 – Q19 and Q21 – Q25
and also with a floorplan of the area in the vicinity
of her fall showing the location and direction of the
cameras as they applied on the day of the fall.
3. On or before 15 April 2016, Retail Activation must
provide Mrs Day with the information requested
on 13 August 2015 by Q5.
4. Otherwise, all applications are dismissed.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS – PERSONAL
INJURIES PROCEEDINGS – PRE-TRIAL PROCESS –
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Where claimant injured in a slip and fall incident – where
claimant applied to inspect the premises to undertake tests,
for disclosure of information and to amend her notice of
claim and for orders regarding alleged conflicts of interest –
where Woolworths applied to dispense with compulsory
conference – where respondents applied for orders regarding
claimants communications with the parties – whether orders
should be made.
Personal Injuries Proceedings Act 2003 s27, s14(2)
Personal Injuries Proceedings Regulation 2002 s7
Uniform Civil Procedure Rules 1999 r250
Hartley v Australia Meat Holdings Pty Ltd Unreported, No.
13 of 1995, District Court of Queensland, followed
Haug v Jupiters Ltd [2008] 1 Qd R 276, applied
JK International Pty Ltd v International Comtrade &
Shipping Ltd [2005] QSC 026, followed
Karaka v Woolworths Ltd Unreported, No. 597 of 2009,
Supreme Court of Queensland, followed
King & Anor v Milpurrurru & Ors (1996) 136 ALR 327,
considered
Oliver v Mulp (2009) QSC 340, followed
RACQ/Gio Insurance Ltd v Ogilvie [2002] 1 Qd R 536,
applied
Ridley Agriproducts Pty Ltd v SMAS Consulting Pty Ltd
[2003] QDC 284, considered
Shapcott v W.R. Berkley Insurance (Europe) Limited & Anor
[2015] QDC 102, considered
Wright v KB Nut Holdings Pty Ltd [2010] QDC 91, followed
COUNSEL: G. O’Driscoll for the Applicant
SOLICITORS: DLA Piper for the Applicant
O. Day, self-represented for the 1st Respondent
S. Carter, Gadens Lawyers for the 2nd & 3rd Respondents
[1] Olga Day was injured on 18 December 2014, when she slipped on a shallot on the
floor of a Woolworths Store in the Orion Shopping Centre, Springfield. Pre-
litigation processes under the Personal Injuries Proceeding Act 2002 (PIPA) are in
progress. Mrs Day has proceeded against Woolworths Limited and 2 other
companies, CPM Australia Pty Ltd and Retail Activation Pty Ltd, because of their
connection to a demonstration table operated in the Woolworths store near where
she fell. Those 2 company respondents are referred to in this judgment as Retail
Activation.
[2] Mrs Day is a litigant in person, but is qualified as a lawyer in Russia, her country of
birth. She has prior experience of the Queensland civil justice system and has
previously conducted her own litigation. She confirmed her intention to represent
herself and also her understanding of the obligations imposed on parties to civil
proceedings.
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[3] This matter is before the court because of disputes about PIPA requirements.
Woolworths and Mrs Day have brought competing applications about:
(a) Whether there should be a compulsory conference and if so, when;
(b) Whether Mrs Day should be allowed to inspect the Woolworths store
for various purposes;
(c) Whether Woolworths and Retail Activation have met their obligation
to disclose information;
(d) Whether Mrs Day should have leave to amend her Notice of Claim;
(e) How Mrs Day may communicate with the parties; and
(f) How to deal with her allegations of conflict of interest and abuse of
process.
(a) The Compulsory conference
[4] When Woolworths commenced their application, it sought an order for the court to
set a date for a compulsory conference. It later amended its application to seek an
order to dispense with the compulsory conference. Mrs Day is now willing to
participate in a compulsory conference on 22 April 2016; a date which is convenient
to the other parties. Although Woolworths maintained its application to dispense
with the conference; it did so only faintly. The date for the compulsory conference
is set at 22 April 2016.
(b) Inspection of the store
[5] The court may make an order to inspect property if, relevantly to this claim, it is
necessary for deciding an issue in a proceeding.1 The condition that inspection is
necessary to decide an issue in a proceeding imparts the notion that, without the
inspection and the evidence that would be obtained from it, it would not be possible
to make a decision on a particular issue.2 The requirement that the inspection is
necessary has been interpreted to mean necessary in the sense of being necessary to
do justice between the parties.3
[6] Mrs Day wants to inspect the store for the following purposes:
(a) To measure the coefficient of friction of the floor material;
(b) To perform further slip resistance floor tests with further assessment
of a number of factors that may have contributed to her injury – such
as her weight, the heel and sole of her shoe and the spillage hazard
(shallot);
(c) To examine Woolworth’s compliance with the relevant health and
safety standards, building codes and industry practices;
(d) To take photographs;
(e) To inspect Woolworth’s practice in selling loose shallots and testing
the design of customer’s trolleys;
(f) To analyse Woolworth’s policy in relation to sweeping, inspecting
and cleaning of spillages on the floor;
1 Uniform Civil Procedure Rules 1999 r250 2 Karaka v Woolworths Ltd Unreported, No. 597 of 2009, Supreme Court of Queensland, 15 June 2009 3 Hartley v Australia Meat Holdings Pty Ltd Unreported, No. 13 of 1995, District Court of Queensland, 13
December 1996 at p4
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(g) To access and analyse the supermarket’s security cameras and CCTV
monitoring system.
[7] Woolworths opposes the order, arguing there is no need for the inspection and
investigations given information already provided and the concessions made by
Woolworths, which it is bound by.
[8] There are two aspects to Mrs Day’s request: inspection and testing of the area in the
vicinity of the fall; and inspection of the CCTV monitoring system. Dealing with
the former, I am not persuaded that inspection is necessary to decide an issue in the
proceeding.
[9] The following information was provided to Mrs Day in a letter dated 7 October
2015 from Woolworths’ solicitor:
As the premises are leased Woolworths is the relevant entity to gain access of the premises for testing. To date we have not been contacted by Mirvac in respect of any request for access however in order to expedite the investigations of your ergonomic expert Woolworths has made inquiries and gathered the following information:
The flooring in the main aisle of the Woolworths’ Springfield area where Mrs Day’s accident occurred is a VCT (vinyl composite tile) called Exelon which is manufactured by Armstrong World Industries Australia Pty Ltd.
Woolworths has undertaken investigations in respect of any records they may hold regarding slip resistance testing of the Exelon tiles. We enclose copies of slip resistant tests performed by CSIRO pursuant to the Australian Standard AS-NZS4586.1999 and AU-NZS4586.1999.
Furthermore, whilst Woolworths cannot admit the circumstances of the accident as its staff did not directly witness the fall Woolworths is prepared to make the concession that if Mrs Day is accepted in the evidence that she stepped on a piece of shallot on the floor in the common walkway near the cash registers that debris would have made the floor slippery.
In order to make the point absolutely clear, Woolworths is not leading evidence that the accident occurred other than as alleged by Mrs Day or that the shallot would not have represented a slipping hazard. Woolworths is contesting liability on the grounds that there was a reasonable system for inspecting and cleaning the floors and that in the circumstances of this particular accident there were no reasonable steps which Woolworths could have taken to have prevented the accident occurring.
If your ergonomics expert is not satisfied with the slip resistance testing data and the concessions made by Woolworths, and requires a physical testing of the flooring in question, would you please obtain a letter from
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the expert outlining the further investigations which they require in order to complete their report and why the need to undertake the physical inspection in addition to the slip resistant test results which we have disclosed to you. We will then take that response to Woolworths to determine whether they are able to provide that information without the need to incur the cost and delay of an inspection.”
[10] Mrs Day did not respond to that invitation to provide information from her expert.
[11] It is evident from Mrs Day’s most recent submissions4 that she has misconceived
Woolworths’ position in the proceedings. She said that Woolworths admitted the
floor was slippery at the time of the incident and, on that assumption, queried its
denial of liability.
[12] However, as is clear from the extract above. Woolworths has not admitted the floor
was slippery at the time. That will be a matter for the court to determine on Mrs
Day’s evidence. Woolworths has advised that it will not lead evidence the accident
occurred other than as she alleges. Further, it will not lead evidence that a shallot on
the floor would not represent a slipping hazard. The effect of these concessions is
that, assuming the court accepts Mrs Day’s statement she slipped on a shallot, there
will be no issue about whether the floor was slippery or how slippery it was.
[13] It also seems that Mrs Day now wants to perform a reconstruction to test a
statement given by the person operating the demonstration table on the day of the
fall. He said he saw something green drop from a shopping trolley onto the floor
approximately 15 steps away. Mrs Day wants to reconstruct the scene to test
whether it is possible for him to have seen this. Why Mrs Day wants to contest this
evidence is not clear. It seems consistent with her case that there was a shallot on
the floor. In any case, I am not satisfied that a reconstruction is necessary in order to
decide an issue in the proceeding.
[14] Ultimately the case against Woolworths will turn on whether it took reasonable
steps to deal with the acknowledged risk that a customer might slip on products
spilled on the floor. Mrs Day has not explained why inspection and testing of the
area in which the fall occurred is necessary for deciding that issue, or any other.
[15] I will now turn to the request to inspect the CCTV monitoring system. Mrs Day
wishes to inspect the CCTV system and security cameras. In his statutory
declarations of 2 July 2015 & 3 September 2015 Mr McMillan, who is the Store
Manager, said there was no CCTV footage of the event as the area in question was
not covered by a CCTV camera. He said there was no extant CCTV footage from 18
December 2014 from any of the cameras.
[16] Mrs Day has alleged Mr McMillan’s declarations are false and that he was
counselled by Woolworths’ lawyers to destroy evidence. These are most serious
allegations and, other than her own suspicion, Mrs Day appears to have no
foundation for making them. However, there is a conflict in the evidence before the
court about the location and direction of the cameras that does have a bearing on my
4 Outline of Submissions No 3 dated 7 March 2016 at [2.17]
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decision about this request and also some unanswered requests for disclosure of
information about the CCTV system.
[17] Mrs Day said she fell somewhere near aisles 5 & 6. She produced an investigative
report by Mark French, who said that he observed CCTV cameras above checkouts
3 to 8 and observed himself on a CCTV monitor in aisle 5 as he walked away from
the direction of the checkouts 4, 5 & 6.
[18] One of Mrs Day’s requests was for a floor plan of the store showing the location
and direction of the CCTV cameras. Whilst that is too broadly described, the
location and direction of CCTV cameras in the vicinity of the fall is relevant in two
respects; firstly as to whether the incident itself was captured; and secondly as to the
assertion in Woolworths’ Liability Response that the area was inspected 10 minutes
before the fall.
However, this is a matter that can be dealt with by further disclosure of information
pursuant to s27(1)(b)(i). Applying the principles discussed under the heading
disclosure of information, I consider it is appropriate to order that Woolworths must
provide Mrs Day with a floorplan of the area in the vicinity of her fall showing the
location and direction of the cameras as they applied on the day of the fall.
(c) Disclosure of information
[19] Mrs Day claimed the other parties have not fulfilled the obligation imposed by s27
PIPA to disclose relevant information. Dealing with Mrs Day’s requests has been
complicated by the many requests made over time and the number of individuals
they have been directed to. In Mrs Day’s final written submissions, she has
identified which of the specific requests have not been met and why she says I
should order disclosure. Before dealing with them in turn, I will make brief
observations about the principles that I have applied in determining the disputes
about disclosure.
[20] The requests for disclosure are made pursuant to s27 PIPA. The section has a
beneficial purpose and should be given a broad remedial construction. However,
words of limitation in the section cannot be ignored.5 Mrs Day’s requests appear to
be made under s27(1)(b)(i), which requires disclosure of information in the
respondent’s possession about the circumstance of, or the reasons for, the incident.
[21] The circumstance of, or the reasons for, the incident are not limited to events
contemporaneous to the incident. That phrase is apt to encompass all events which
appertain to or are causes of the incident in which the claimant suffers personal
injury.6 The focus of the obligation is upon causation not the nature or scope of the
respondent’s duty. Information may be obtained about what a respondent did or did
not do. However, requests directed to whether the respondent had a duty to do
something, or more, in the lead up to the incident are beyond the scope of
s27(1)(b)(i).7
5 Haug v Jupiters Ltd [2008] 1 Qd R 276 6 RACQ/Gio Insurance Ltd v Ogilvie [2002] 1 Qd R 536 at [26] 7 Wright v KB Nut Holdings Pty Ltd [2010] QDC 91 at [37]
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[22] Questions about the knowledge of various officers and directors about previous or
subsequent incidents do not relate to the circumstance of reasons for the incident.8
Further, the obligation applies to information in the respondent’s possession; there
is no requirement for a respondent to enquire of others.9
8 Oliver v Mulp (2009) QSC 340 at [15] 9 Oliver v Mulp (2009) QSC 340 at [13]
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(i) Requests of Woolworths
[23] Dealing firstly with the requests she made of Woolworths, Mrs Day made 2 sets of
requests. Request 1 was made on 14 October 2015; Request 2 was made on 9
February 2016. Woolworths has provided Statutory Declarations by Mr McMillan,
the store manager, on 14 July 2015 and 7 September 2015. It has also responded to
requests for information through letters from DLA Piper on 7 and 19 October 2015
and 10 February 2016. Unless otherwise specified, the question numbers used in the
following reasons relate to the first request.
[24] Woolworths has adequately responded to many of the requests and others are
beyond the scope of Woolworths’ disclosure obligation. However there are a few
requests which I will require Woolworths to respond to.
[25] Firstly, Q 16 seeks sweeping logs for the Produce and Check Out areas on the date
of the incident. Woolworths provided those for the area in which Mrs Day fell.
However, sweeping logs for other areas of the store could appertain to the reasons
for the incident. Mrs Day alleges there was no cleaning procedure at all. Information
relating to the cleaning process used for the Produce and Check Out areas on the
day leading up to the incident, is potentially relevant to what Woolworths did, or as
Mrs Day alleges, did not do in dealing with spill hazards on that day.
[26] Secondly, Q 17 - Q 19, to the extent that they deal with policies and procedures to
identify and reduce slip hazards, relates to the circumstance of or reasons for the
incident.
[27] Thirdly, in its liability response, Woolworths asserts that Mrs Day failed to keep a
proper lookout for her own safety. At the hearing, Mrs Day identified that she will
argue the location of and activities conducted at the demonstration table distracted
her, contributing to her fall. Q21 –Q22 seek information about the location and
purpose of the demonstration table. The questions relate to a circumstance of or
reasons for the incident.
[28] Fourthly, Q 23 – 25 relate to the CCTV coverage of the area in which Mrs Day fell;
information about the person responsible for recording, monitoring and supervising
the CCTV security cameras and the procedure for managing, monitoring and
deleting the CCTV footage as at the date of the incident. As observed when dealing
with the request for inspection, there is conflicting evidence before the court about
the CCTV system and what it can and cannot capture. Consistent with my decision
about the floor plan of the cameras and their directions, I will order Woolworths to
answer these questions.
[29] Otherwise, the requests have been responded to or are not proper requests, as I
understand Mrs Day’s claim. For quite a few of the requests it seems that Mrs Day
does not accept the answer given. That is not a proper basis for seeking further
information.
[30] Some questions relate to the cleaning, maintenance and testing of the floor,
specifically of its slip resistant quality. (Q1 – Q4 & Q6-Q8). Woolworths has
confirmed its responsibility for cleaning the floor during trading hours: see Mr
McMillan’s 2nd Statutory Declaration [2] [3] & [5]. Further, Woolworths provided
information about the materials used for the floor tiles in the relevant area and
provided the only test results it held (letter DLA Piper 7 October 2016). Finally,
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Woolworths advised that it does not deny that the presence of a shallot on the floor
would present a slip risk (letter DLA Piper 7 October 2016). In those circumstances
the requests do not relate to a matter in dispute.
[31] Q9 – Q10 relate to the packaging of shallots and the risk of spill hazards. Mr
McMillan adequately answered that request in his 2nd Statutory Declaration [14] –
[16]. Q11 – Q14 relate to the Weekly Sweeping Log and the system of inspection.
Again, Mr McMillan adequately addressed this in his 2nd Statutory Declaration [2]
[3] [15].
[32] Some questions relate to what happened after the accident or relate to matters that
are not a circumstance of or reasons for the incident and are beyond the scope of
s27(1)(b)(i):
1. Q15 relates to what happened after the incident and, in any case has been
answered: see Mr McMillan’s 2nd Statutory Declaration [21].
2. Q26 relates to all slip and fall incidents at the store both prior to and after the
incident. I cannot see how that bears on the circumstances or reasons for Mrs
Day’s fall.
3. Mrs Day’s second request to Woolworths made on 9 February 2016 was
directed personally to two Directors and two company officers, 3 of whom
she applied to join as respondents to the claim. They seem to me to be
directed to demonstrating that Woolworths, its Directors and its company
officers had adopted a widespread and longstanding reckless practice in
relation to slip and fall incidents. Perhaps Mrs Day will be able to
demonstrate some basis for requiring disclosure of some of that material
once proceedings have commenced. However, at present these requests do
not appear to relate to the circumstance of or the reasons for the particular
incident in which Mrs Day says she was injured.
(ii) Requests of Retail Activation
[33] I will now turn to the requests made of Retail Activation. The requests were made
on 13 August 2015. Although Mrs Day has not yet formalised her particulars of
negligence against Retail Activation, I have considered her requests on the
understanding that she will claim that she was distracted by the location of and
activities at the demonstration table, and this contributed to her fall.
[34] Retail Activation has provided two Statutory Declarations by its employees:
Maryanne Taylor, National Field Manager; and Monil Mehta, who operated the
demonstration table. Further information or reasons for not providing requested
information was provided by its lawyers Gadens, in a letter dated 11 February 2016.
[35] Having reviewed the requests for information and the responses, I am persuaded I
should order further disclosure in one respect only.
[36] Q5 of the request made on 13 August 2015 asks who placed and/or permitted the
demonstration table to be established on the Woolworths supermarket’s common
walkway near the cash registers. Mr Mehta said that he set up the table, but not who
selected the location for the table. In the letter of 11 February 2016 at [4], Gadens
said the location was a matter for Woolworths as the occupier. At the time, the Mrs
Day had not clarified her particulars of negligence against Retail Activation. Gadens
noted the location of the table had nothing to do with the fall. Now Mrs Day has
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clarified how she will allege the location of the table contributed to her fall, it is
appropriate that Retail Activation provide the information requested, if it can.
[37] Otherwise, I make no further orders for disclosure by Retail Activation, for the
reasons that follow.
[38] One of the requests is for a Woolworths’ policy document that is not within Retail
Activation’s possession: Q1. Other requests have already been adequately
responded to:
1. Q4 is about Retail Activation’s requirements for location of the
demonstration table See Gadens letter [4].
2. Q13 & Q14 are about whether Mr Mehta provided a statement to
Woolworths about the incident. See Gadens letter [13] & [14].
3. Q21 is about an internal incident report. See Statutory Declaration of Ms
Taylor [22].
4. Q15 is whether Mr Mehta removed the squashed piece of shallot. See
Statutory Declaration of Mr Mehta [16].
[39] Others relate to what Retail Activation might have or should have done, not a
circumstance of or reasons for the incident, and are therefore beyond the scope of
s27(1)(b)(i):
1. Q8 is about its procedure and policy for reporting, investigating and
preventing incidents.
2. Q12 is about a system for monitoring the safety of in-store demonstrations.
3. Q 16 is about training of Mr Mehta in slip and fall incident handling and
prevention.
4. Q22 is about similar slip and fall incidents at any supermarkets where Mr
Mehta or Retail Activation demonstrators were involved.
5. Q23 is about steps taken by Retail Activation to prevent recurrence of
similar incidents.
[40] None of those appear to be proper requests for information pursuant to s27(1)(b)(i).
(d) Amendments to the Notice of Claim
[41] Mrs Day wants to amend her PIPA Part 1 Notice of Claim in two ways; firstly to
add particulars of the negligence she alleges against Retail Activation; and secondly
to join certain Directors and Officers of Woolworths as personal respondents to the
claim.
(i) Particulars of negligence
[42] The solicitors for Retail Activation have been seeking particulars of negligence
alleged against its client since June 2015. At the hearing Mrs Day said her claim
against Retail Activation relied on the position of the demonstration table in a high
traffic area and the activities conducted at the table, which distracted her and
contributed to her fall. At the end of the hearing, she confirmed she would clarify in
writing her particulars of negligence against Retail Activation. She conceded that, as
Retail Activation submitted, she did not need any order from the court to do so. It is
not necessary to make any order to that effect.
(ii) Adding directors and officers of Woolworths as
respondents
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[43] Mrs Day sought to add Grant O’Brien and Gordon Cairns (Directors of
Woolworths) and Richard Dammery (Chief Legal Officer and Company Secretary)
as personal respondents to the claim because:
“they knew and/or reasonably should have known that the hazardous
conditions under their control could injure (her)… but negligently failed to
take or order appropriate actions to avoid the harm.”
[44] Because the time prescribed for adding respondents to the Part 1 Notice of Claim
has elapsed,10 Mrs Day needs the leave of the court. Counsel for Woolworths held
instructions from each of the proposed personal respondents to oppose the
application because Mrs Day had not articulated a legal or factual basis for their
personal liability.
[45] Mrs Day argued the ground of liability for adding the respondents is irrelevant,
citing two decisions of this Court as authority for that proposition. I do not accept
that submission. Nor are the cases relied upon authority for it. They deal with the
principles that apply when a respondent to a Notice of Claim seeks contribution
from another person. They do not assist Mrs Day on this application.11
[46] Because of the consequences of adding a respondent to a Notice of Claim, I
consider it is appropriate to adopt the test provided by r69 of the Uniform Civil
Proceedings Rules 1999 for joining parties to a proceeding. That test is whether the
addition of the proposed party is necessary, or is desirable, just and convenient, to
enable the court to adjudicate effectually and completely on all matters in dispute.
[47] The power to add respondents is discretionary. Mrs Day bears the onus of
persuading the court they should be added. As I understood Mrs Day’s submissions,
she considers all she needs to do is identify a potential way in which the
respondents might have breached the Corporations Act in order to demonstrate the
potential liability of the proposed respondents.
[48] Mrs Day based her application on the duty of due care and diligence owed by
Directors and company officers such as General Counsel and Company Secretary.
She relied on the following duties imposed by the Corporations Act 2001 (Cth):
The duty to exercise care and diligence – s180
The duty of good faith – s 181
The duty to not improperly use their position – s183
The duty to not improperly use information obtained – s184
[49] She argued a recent Supreme Court decision (Phoenix Constructions Queensland
Pty Ltd v Coastline Constructions Pty Ltd [2011] QSC 167) widens the scope of a
director’s personal liability, requiring only a contravention of the Corporations Act
2001.
[50] Again, I must reject Mrs Day’s interpretation of case law. This one turned on an
interpretation of s1324(10) of the Corporations Act in the particular circumstances
of the case. Phoenix Constructions was a partner in a failed joint venture. It sought
10 Personal Injuries Proceedings Act 2003 s14(2); Personal Injuries Proceedings Regulation 2002 s7 11 Ridley Agriproducts Pty Ltd v SMAS Consulting Pty Ltd [2003] QDC 284 and Shapcott v W.R. Berkley
Insurance (Europe) Limited & Anor [2015] QDC 102
12
damages pursuant to the s1324(10) against a Director of the other joint venture
company, Coastline Constructions. The question the court had to determine was
whether the Court had the power to award damages pursuant to that provision. The
answer to that question depended on whether Phoenix Constructions could have
applied for an injunction to restrain the director’s conduct, as a person whose
interests were adversely affected by it. The trial judge accepted the director had
improperly used his position to cause detriment to Coastline Constructions in
breach of Section 182(1) of the Corporations Act, because his actions led Coastline
Constructions to lose an interest in land. This detrimentally affected Phoenix
Constructions’ recourse to assets in its status as a creditor of Coastline
Constructions. The case deals with a different issue and does not further Mrs Day’s
application.
[51] Mrs Day relies on statutory duties the proposed respondents owe to Woolworths and
on their individual responsibilities for risk management within Woolworths. She has
not drawn any specific link between these duties and responsibilities and the
circumstances in which she says she was injured. Further, one of the proposed
respondents, Mr Cairns, was not a director at the time of the incident.
[52] While a company might commit a tort through the actions of its directors, generally
speaking the reverse is not true and the officers of the company do not bear a
separate liability. There must be some direct involvement in the tort by the director
or officer.12 A director or officer might be so closely involved in wrongful decisions
that they are personally liable, but nothing of that nature has been suggested here.13
[53] I am not persuaded the proposed respondents should be added to the Part 1 Notice
of Claim and Mrs Day’s application is refused.
(f) Mrs Day’s direct communications with the respondents
[54] One of Woolworth’s applications dealt with the channel for communication
between Mrs Day and the other parties. Retail Activation joined with Woolworths
in seeking orders requiring Mrs Day to communicate with the other parties about
this matter exclusively through their lawyers.
[55] Mrs Day accepted she had made direct contact with Directors, Officers and
employees of Woolworths and also with Zurich Australian Insurance Limited, the
public liability insurer for Retail Activation. It seems she persisted in doing so,
despite requests she desist. The affidavit evidence on these applications
demonstrated the confusion arising from Mrs Day’s multiple requests for
information directed to different individuals within the companies.
[56] At the end of the hearing, Mrs Day undertook to communicate exclusively with the
legal representatives of the parties. Mrs Day seemed to understand the gravity of her
undertaking to the court and accepted her personal responsibility to comply with it.
Given that, the orders appear unnecessary at this point.
(g) Conflict of interest and abuse of the court process
12 JK International Pty Ltd v International Comtrade & Shipping Ltd [2005] QSC 026 at [20] 13 King & Anor v Milpurrurru & Ors (1996) 136 ALR 327
13
[57] Mrs Day has requested an order requiring the directors and senior officers of
Woolworths to disclose any conflict of interest they have with partners and
employees of their solicitors. If there is any potential conflict of interest between
Woolworths and its solicitors, Mrs Day has not explained how it bears on this case
or why she is entitled to the order she seeks.
[58] Mrs Day asserts Woolworth’s solicitors have adopted an aggressive litigation
practice in multiple cases involving injured customers and employees of
Woolworths. She has also made numerous complaints about either the solicitors or
counsel for the respondents to her claim. She relies on errors in their material,
particularly about the time and date of the incident; late provision of material; and
concurrence in the respondents’ attitudes to various matters to justify serious
allegations of collusion and abuse of court processes. It is not necessary to descend
into the detail of them as she has not made any application in relation to those
matters. She did flag a claim for aggravated damages arising from what she alleges
is oppressive conduct in the litigation. It is not necessary to consider the basis for
such a claim at the pre-litigation stage.
[59] Orders:
1. The date for the compulsory conference is set at 22 April 2016.
2. On or before 15 April 2016, Woolworths must provide Mrs Day with the
information requested on 14 October 2015 by Q16 – Q19 and Q21 – Q25
and also with a floorplan of the area in the vicinity of her fall showing the
location and direction of the cameras as they applied on the day of the fall.
3. On or before 15 April 2016, Retail Activation must provide Mrs Day with
the information requested on 13 August 2015 by Q5.
4. Otherwise, all applications are dismissed.
[60] I will hear from the parties about costs.