Pye, Kenneth v Butterfields Cheese Factors Pty Ltd [1997] FCA 88

IN THE FEDERAL COURT OF AUSTRALIA) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. AG 56 of 1996 DISTRICT REGISTRY ) ) GENERAL DIVISION )

KENNETH PYE Applicant BUTTERFIELDS CHEESE FACTORS PTY LIMITED Respondent COURT: FINN J PLACE: CANBERRA DATE: 18 FEBRUARY 1997

MINUTES OF ORDERS THE COURT ORDERS THAT:

the applicant be granted leave to file and serve a Notice of Appeal from the judgment of Gallop J given on 25 July 1996. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. AG 56 of 1996 DISTRICT REGISTRY ) ) GENERAL DIVISION )

KENNETH PYE Applicant BUTTERFIELDS CHEESE FACTORS PTY LIMITED Respondent COURT: FINN J PLACE: CANBERRA DATE: 18 FEBRUARY 1997 EX TEMPORE REASONS FOR JUDGMENT This is an application pursuant to O52 r15 of the Federal Court Rules for an extension of time in which to file and serve a Notice of Appeal from the judgment of Gallop J given in the Supreme Court of the Australian Capital Territory on 25 July 1996. The need for the application arises in consequence of an error made by the applicant's solicitor as to the time in which a notice of appeal is required to be filed and served under the Rules of this Court. The application was lodged six days after the prescribed period for filing a notice had expired. It has not seriously been proposed that the delay here is other than "small" - cf Kidron & Spaile Architects Pty Ltd v Garrett (1993) 35 NSWLR 572 at 582 - or that any relevant prejudice would be caused by the granting of the extension of time. Resistance to the application is based on the ground that the appeal itself has no prospect of success: on the significance of prospects of success in an application of this kind see my decision in Kalaba v The Queen, (unreported, 13 September 1996, FC) and the decisions referred to therein. It is the case that if I am satisfied that sufficient prospect of success is there - albeit the appeal may be unsuccessful in the event - this case clearly would be one justifying an exercise of discretion in the applicant's favour: see Jess v Scott (1986) 12 FCR 187. The case was for damages for personal injuries sustained by an employee in the course of his employment allegedly as a result of the negligence of the employer.

Put shortly, the applicant's back injury was sustained lifting a bundle of cheese (found by his Honour to weigh 8 kilograms) while standing in a delivery van. The applicant's employment was to distribute what I will inexactly call delicatessen merchandise to stores in the southern region of New South Wales and in the ACT. He devised his own system for loading and unloading his delivery van daily. He was not without experience in conducting delivery services. Prior to the employment in which he sustained the injury complained of, the applicant had suffered a serious back injury which required a significant period of medical treatment including surgery. A central issue in the case was whether his employer was aware at the time of his history of back trouble, with the consequential responsibility to the applicant that this could have entailed. The trial Judge, in rejecting the applicant's evidence in this, found the employer was not so aware. The applicant's negligence claim did not, though, depend alone on the responsibility the employer might have had in consequence of such knowledge. His claim was as well that his employer was in any event under a duty to take reasonable care for his safety in carrying out his work and failed in this. His Honour equally rejected this alternative basis of liability. He concluded that the functions performed by the applicant "would not expose a worker of average physical soundness to any real and foreseeable risk of injury". And, applying observations of the High Court in Neil v New South Wales Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 he concluded that there was no evidence before him as to steps which might reasonably have been taken to avoid injury to the applicant. The proposed grounds of appeal are set out in the affidavit of the applicant's solicitor. They are as follows: "4. In the course of giving his reasons His Honour the trial judge made findings involving the demeanour and credibility of a number of the Applicant's witnesses. No appeal is sought to be brought respecting those findings. The questions involved in the Appeal are as follows: (a) Whether His Honour Mr. Justice Gallop erred in finding that the Respondent to this appeal was not liable to the Applicant for damages for negligence;

(b) Whether, given that His Honour found that the accident probably happened the way in which the Applicant said, His Honour erred in holding and relying upon as relevant to liability - (i) that the Applicant devised his own system of doing the work, (ii)there were a number of ways in which the Applicant could have done what he did, (iii) that no one had told the Applicant how to move the stock, (iv)that the Applicant was the architect of how he did the work; (c) Whether his Honour misdirected himself as to the obligations imposed upon the Respondent as the employer of the Applicant particularly in holding that - (i) its obligation to give instructions was restricted to giving instructions respecting unusual or unexpected risks, (ii)its obligation to give warnings was restricted to warning of special circumstances, (iii) the Applicant was an experienced sales representative, and in that consequence the Respondent was absolved from the obligation to instruct and/or warn him; (d) Whether His Honour erred in failing to find, consider properly, or at all whether the Respondent knew or ought to have known that its system of work had been objectively demonstrated to be dangerous and that such danger could easily have been eliminated by the Respondent;

(e) Whether His Honour erred in failing to find that the Respondent's system of work had been objectively demonstrated to be dangerous and that such danger could easily have been eliminated by the Respondent; (f) Whether His Honour failed to consider and act upon admissions made by servants and agents of the Respondent to the effect that the system of work implemented by it was unsafe and dangerous to employees including the Applicant." For the present I am not concerned with assessing positively the actual degree of likelihood of success of any of these grounds, as much as with determining whether they have no prospects of success at all - are "hopeless" to use the language of Priestley JA in the Kidron & Spaile Architects case. Proposed grounds 4(b) and (c) clearly do call into question findings made and conclusions arrived at in his Honour's reasons. Grounds (d), (e) and (f), I am asked to infer, relate to evidence before his Honour but to which he failed to advert in his reasons. The applicant's legal advisers have not considered it necessary to provide any evidentiary basis in this application upon which I could rely to reach any view as to the "hopelessness" or otherwise of these particular grounds.

Given that the judgment to be appealed from was an ex tempore one - and I imply no criticism of it on that account - I would have expected some assistance in this regard from the applicant's legal advisers. They appear to have misconceived the burden they carry in such an application. Nonetheless, and bearing in mind the relatively low threshold that should be imposed where the delay is small, I am unprepared to hold that out of grounds (b) and (c) an arguable case may not be able to be extracted. While the authorities relied upon by his Honour loom threateningly over the proposed grounds, I feel compelled to conclude that the applicant should not be denied the opportunity to test both the limits and the application of those authorities in an appeal. As to the other grounds, they doubtless are ones open to be argued by the applicant on his appeal. I simply am in no position to know whether the alleged errors assigned related to matters which were before his Honour at all.

My order then will be that the applicant be granted leave to file and serve a Notice of Appeal from the judgment of Gallop J given on 25 July 1996. I would note that the solicitors for the applicant have accepted that the respondent's costs of this application will be borne by them personally. I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate Dated: 17 February 1997

Counsel for the applicant : P Shiels QC Solicitors for the applicant : Scott Shiels & Glover Counsel for the respondent : R Refshauge Solicitors for the respondent : Deacons Graham & James Date of hearing : 13 February 1997 Date of judgment : 18 February 1997