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 –

2

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.

3

[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

4

(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

5

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]

6

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]

7

[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]

8

(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,

9

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

10

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

11

[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.