MORGAN -v- UNDERGROUND SERVICES AUSTRALIA PTY LTD [2026] WADC 77

[2026] WADC 77 [2026] WADC 77 (PC) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : MORGAN -v- UNDERGROUND SERVICES AUSTRALIA PTY LTD [2026] WADC 77 CORAM : PRINCIPAL REGISTRAR MCGIVERN HEARD : 23 JULY 2026 DELIVERED : 18 AUGUST 2026 FILE NO/S : CIV 2019 of 2023 BETWEEN : PHILLIP FLANNAN MORGAN Plaintiff AND UNDERGROUND SERVICES AUSTRALIA PTY LTD First Defendant CHICHESTER METALS PTY LTD Second Defendant Catchwords: Practice and procedure - Application for leave to issue third party notice - Where action entered for trial - Whether leave to make the application should be granted - Where defence filed - Whether leave to issue third party notice should be granted - Considerations relevant to exercise of discretion - Extent of and explanation for delay - Prejudice - Extent to which merits of the proposed claim should be considered -- 1 of 17 -- [2026] WADC 77 [2026] WADC 77 (PC) Page 2 Legislation: District Court Rules 2005 (WA), r 38A Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 19 r 1 Result: Application allowed Representation: Counsel: Plaintiff : Mr B Ullinger First Defendant : Mr R L Marando Second Defendant : Mr A Percy Solicitors: Plaintiff : Accident Claims Lawyers First Defendant : Momentum Legal Second Defendant : Wotton Kearney Case(s) referred to in decision(s): Bristile Ltd v The Buddhist Society of Western Australia Inc [2003] WASC 30 Esanda Finance Corporation Ltd v Putnin (Unreported, WASC, Library No 940532, 28 September 1994) Fernandez v Villaneuva [2004] WADC 32 Gill v Ramage [2026] WADC 60 Godfrey v Berresford [2012] WASC 77 Hooper v Cockles Pty Ltd [2025] WASCA 143 Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2] [2022] WASC 442 Pigozzo v Mineral Resources Ltd [2022] FCA 1166 Roe v The State of Western Australia [2013] WASC 130 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 Tipperary Developments Pty Ltd v The State of Western Australia [2005] WASC 75 -- 2 of 17 -- [2026] WADC 77 [2026] WADC 77 (PC) Page 3 Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212 -- 3 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 4 PRINCIPAL REGISTRAR MCGIVERN: 1 In broad terms, these proceedings concern a claim for damages arising from allegations made by the plaintiff that, on 19 November 2020, he was injured in an accident that occurred: (a) in the course of his employment as a poly welder with the first defendant (UGS); (b) on a mine site (Site) operated and/or controlled by the second defendant; and (c) while the plaintiff was performing work at the Site pursuant to an agreement (Works Contract) between the second defendant and a company, Kurtarra Cape USA JV Pty Ltd (KC). 2 This decision concerns the application of UGS for leave to issue a third party notice to KC. 3 The application is opposed by the plaintiff, broadly on the grounds that: (a) UGS have unreasonably delayed making the application; and (b) the proposed third party proceedings lack merit. 4 In dealing with the application, I will consider the following issues: (a) What rules and principles apply? (b) What are the circumstances of the application? (c) Is it in the interests of justice that leave be given to UGS to make the application, and issue the proposed third party notice, having regard to: (i) the extent of the delay and the reasons given for it; and (ii) the extent to which the court should engage in assessing the merits of the proposed third party proceedings? 5 For the reasons that follow, the application is allowed. -- 4 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 5 What are the circumstances of this application? Relevant procedural history 6 The plaintiff commenced the action by writ of summons filed on 28 August 2022, and filed a statement of claim on 4 October 2023. 7 On 12 October 2023, the second defendant filed a defence and, at the same time, issued a third party notice against KC. 8 UGS filed a defence on 25 October 2023. 9 On 6 May 2024, the second defendant discontinued its third party proceedings against KC. 10 The plaintiff entered the action for trial on 30 August 2025. 11 On 4 September 2025, the parties attended an informal conference. 12 On 14 October 2025, the plaintiff purported to file a substituted statement of claim. 13 The parties attended a pre-trial conference on 8 December 2025. 14 UGS made this application by chamber summons filed on 30 January 2026. 15 On 23 February 2026, the plaintiff filed an amended statement of claim and, by order made by consent on 21 April 2026, was given leave to amend the statement of claim in those terms and for that pleading to stand.1 16 UGS filed an amended defence on 19 May 2026. 17 The application was heard on 23 July 2026, at which: (a) UGS and the plaintiff appeared and each made submissions orally and in writing,2 and filed supporting affidavits;3 and 1 This was subsequently withdrawn and, instead, the plaintiff applied to amend its statement of claim - as to which, see [15]. 2 First Defendant's Outline of Submissions filed on 20 July 2026 (UGS Submissions); Plaintiff's Outline of Submissions filed on 16 July 2026 (Plaintiff's Submissions). 3 In support of the application, the first defendant filed the affidavit and further affidavit of Robert Lelio Marando both made 17 March 2026 (respectively the First and Second Marando Affidavit) and two further affidavits of Robert Lelio Marando made 16 July 2026 and 20 July 2026 (respectively, the Third and Fourth Marando Affidavit). In response to the application, the plaintiff filed the affidavit of Stuart Le Grand made 14 July 2026 (Le Grand Affidavit). -- 5 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 6 (b) the second defendant attended but did not actively participate in the hearing.4 Relevant pleadings in the action 18 Relevantly, in the pleadings referred to at [15] - [16]: (a) the plaintiff alleges that: (i) KC is a joint venture company formed pursuant to a joint venture agreement (JVA) between UGS and two other entities;5 (ii) the second defendant operated and/or exercised control over the Site, pursuant to the Works Contract between it and KC; (iii) UGS's negligence and/or breach of its statutory duties6 caused or contributed to the plaintiff's injuries; and (iv) the second defendant's negligence and/or breach of its statutory duties7 caused or contributed to the plaintiff's injuries; (b) UGS denies the JVA as pleaded by the plaintiff, but admits that it holds shares in KC and has entered into a joint venture shareholders agreement with KC and two other entities;8 and (c) the second defendant admits the Works Contract.9 UGS's proposed third party claim 19 In support of the application, UGS has filed a minute of proposed statement of claim against KC10 in which it alleges that: (a) UGS and KC were parties to a written agreement pursuant to which: 4 ts 31. 5 Plaintiff's Amended Statement of Claim filed 23 February 2026 (ASOC), par 2.2. See also: Second Defendant's Amended Defence filed 14 May 2026 (D2 AD), par 2. 6 Those duties said to arise under the Mine Safety and Inspection Act 1994 (WA) (MSI Act) and/or Occupational Safety and Health Act 1984 (WA) (OSH Act): ASOC pars 2, 10. 7 Those duties said to arise under the OSH Act and the Occupiers Liability Act 1985 (WA) (OLA): ASOC pars 3, 11. 8 First Defendant's Amended Defence filed 19 May 2026 (D1 AD), par 3. 9 D2 AD par 3(b). 10 First Defendant's Minute of Proposed Statement of Claim against Proposed Third Party filed 13 July 2026 (TP SOC). -- 6 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 7 (i) KC operated a civil and mining service contractor business; (ii) UGS was permitted to provide labour to KC to operate that business, and to charge KC for the supply of labour; (iii) UGS supplied the plaintiff as a poly welder to KC; and (iv) UGS may not be held responsible for any act or omission of KC; (b) pursuant to the Works Contract between the second defendant and KC: (i) KC performed works at the Site, using the plaintiff's labour; and (ii) KC directed the plaintiff to work and work duties at the Site; (c) by reason of this, KC owed duties to the plaintiff at common law and under the MSI Act and the OSH Act; (d) if the plaintiff suffered injuries as he alleges, then KC's negligence and/or breach of those statutory duties caused or contributed to them; and (e) if UGS is liable to the plaintiff, then it is entitled to an indemnity or contribution from KC. What rules and principles apply? 20 The Rules of the Supreme Court 1971 (WA) (RSC) apply to cases in this court, subject to any inconsistency with the District Court Rules 2005 (WA) (DCR).11 21 Relevantly, RSC O 19 r 1 is to the effect that: (a) a defendant who has entered an appearance may issue a third party notice where the defendant claims from the third party some contribution, indemnity or relief in relation to a question or issue that is so connected with the original subject matter of the action that it should not only be resolved as between the 11 DCR r 6. -- 7 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 8 plaintiff and defendant, but also be determined as between the defendant and third party; (b) a defendant may not, without the leave of the court, issue a third party notice after it has served its defence; and (c) once a third party is served with a notice, that party is joined to the action and may defend the third party claim in the ordinary way. 22 As appears from that wording, RSC O 19 r 1 is directed to striking a balance between: (a) on the one hand, the desirability and efficiency of having related matters heard and determined together;12 and (b) on the other hand, the prejudice and disruption to the proceedings13 occasioned by a delay in a defendant commencing third party proceedings after a defence has been filed. 23 Further, DCR r 38A(1)(a) - (b) provides that, after a case is entered for trial, no party may, without the court's leave, apply 'to file further pleadings' or 'to join or substitute parties'. 24 In this case, despite some question on the point being raised in the course of oral submissions, I consider DCR r 38A to be engaged. That is because the action has been entered for trial, and because the proposed third party proceedings will: (a) entail UGS filing further pleadings (notably, the proposed statement of claim against KC), as contemplated by DCR r 38A(1)(a); and (b) by reason of RSC O 19 r 1(3), have the effect of joining KC as a party to the proceedings, as contemplated by DCR r 38A(1)(b). 25 It is also worth pausing to emphasise that: (a) the leave required under RSC O 19 r 1 is leave to issue a third party notice out of time; whereas 12 Tipperary Developments Pty Ltd v The State of Western Australia [2005] WASC 75 (Tipperary) [23] - [24]. 13 Esanda Finance Corporation Ltd v Putnin (Unreported, WASC, Library No 940532, 28 September 1994) 5; Godfrey v Berresford [2012] WASC 77 (Godfrey) [19]. -- 8 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 9 (b) the leave required under DCR r 38A is leave to apply (that is, to have the substance of the application dealt with). They are related, but distinct, matters. 26 Those rules must be construed and applied in a manner that best ensures the attainment of the objectives of contemporary case management. Those objectives: (a) impose responsibilities, not just on the court, but on legal practitioners to assist the court so as best to ensure the attainment of the objects in the conduct of litigation;14 and (b) serve the 'overriding goal' of the elimination of any delay 'beyond that reasonably required for interlocutory activities essential to the fair and just determination' of the case.15 27 Because UGS requires leave under each of those rules by reason of the effluxion of time, considerations common to both include: (a) the extent of, and explanation for, the delay giving rise to the need for leave, being: (i) in the case of RSC O 19 r 1, the time between the filing of a defence and the time of making the application; and (ii) in the case of DCR r 38A, the further period between the action having been entered for trial and the time of making the application; (b) the merits of the proposed application (as to which, see [43] - [48] below); and (c) the potential prejudice to any party if leave were granted or refused.16 28 The relationship between those considerations is informed by proportionality, which lies at the heart of contemporary case management.17 14 Hooper v Cockles Pty Ltd [2025] WASCA 143 [14] - [16]. 15 RSC O 1 r 4A, O 1 r 4B. 16 Bristile Ltd v The Buddhist Society of Western Australia Inc [2003] WASC 30 (Bristile) [6]; Gill v Ramage [2026] WADC 60 (Gill) [15]. 17 Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 [6]; Roe v The State of Western Australia [2013] WASC 130 [10] - [11]. -- 9 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 10 29 The ultimate question must, however, always be what is in the interests of justice in the circumstances of the case.18 30 As to delay, and the prejudice it may occasion, I have previously observed that: … the longer the delay giving rise to the need for leave, the stronger the countervailing considerations (including the reasons for the delay) ought to be before leave is granted. That is because: (a) in addition to any specific prejudice (which must be supported by evidence), delay itself may be regarded as prejudicial; and (b) the rule giving rise to the need for leave must have work to do (that is, the important purpose served by a time limit under the rules should not easily be ignored). Related to this, the need for leave should not be ignored, or the grant of leave be assumed, in an application. It must be squarely sought and addressed by the party who needs it.19 31 In the context of applications such as the present, however, it is equally true that the closer the connection between the subject matter of the action and the proposed third party proceedings, the more significant the delay and associated prejudice must be to outweigh the interests of justice in having related proceedings dealt with together.20 Is it in the interests of justice that leave be given? Parties' positions 32 UGS advances the application on grounds that may be summarised as follows: (a) as to seeking leave to apply, pursuant to DCR r 38A: (i) the plaintiff entered the action for trial before the requirements for doing so had been met because it had not filed particulars of damages (and so, it is to be inferred, the date of entry for trial is artificially early); (ii) the delay in bringing the application was not unreasonable because UGS was engaging in settlement negotiations with the other parties obtaining advice as to 18 Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212 [19]. 19 Gill [16] - [17], and the authorities cited therein. 20 Tipperary [23] - [24]; Godfrey [23]. -- 10 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 11 potential conflicts of interest arising out of its shareholding in KC; and (iii) there is a strong connection between the subject matter of the application and the matters that would need to be determined at trial such that allowing the application is likely to assist in the fair and just determination of the case at trial;21 (b) as to the delay in the substantive application to issue a third party notice to KC after UGS filed its defence: (i) the delay in bringing the application was not unreasonable because UGS was engaged in an insurance dispute with the second defendant, in which the second defendant alleged an entitlement to insurance cover held by KC; (ii) the second defendant had commenced third party proceedings against KC, which did not resolve until 6 May 2024; (iii) after 6 May 2024, the parties agreed to several extensions of the time to enter the action for trial to deal with various procedural and evidentiary matters and the parties were conferring about settlement negotiations; and (iv) the plaintiff did not file particulars of damages until 18 September 2025 and a pre-trial conference did not occur until 8 December 2025, being the month before the application was made; (c) as to the merits of the proposed third party claim: (i) the court should not consider in detail the merits of the third party case or weigh evidence - the appropriate forum for this to occur is at trial where a final determination can be made;22 and 21 See Gill [15]. 22 Citing Fernandez v Villaneuva [2004] WADC 32 [24], [35], [39], [42]. -- 11 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 12 (ii) in this regard, cases such as Bristile should be treated with caution - the court in that case did not determine that a detailed merits assessment was required in an application under RSC O 19 r 1 because the issue was not in dispute between the parties. 33 In broad terms, the plaintiff resists the application on the basis that: (a) UGS has not provided a satisfactory explanation for bringing the application out of time; (b) UGS knew, at an early stage of the proceedings, of the existence of KC and its legal relationship with the plaintiff and defendants, and its potential cause of action against KC, but elected not to proceed against it (and, instead, to 'wait and see' what would happen in the negotiations); (c) the nature of the proposed third party proceedings is such that, if leave were given, there would be a substantial delay in the progress of the action to trial; (d) such delay would cause prejudice to the plaintiff; (e) in any event, the court should in the exercise of its discretion under RSC O 19 r 1 consider the merits of the proposed third party claim because it is not in the interests of justice to give leave to advance an unmeritorious claim; and (f) having regard to the contractual and affidavit evidence before the court, the case articulated by UGS in the TP SOC lacks merit, and leave to advance that case should be refused. What is the extent of, and explanation for, the delay? 34 In this case: (a) after 25 October 2023 (when UGS filed its defence) but before 30 August 2025 (when the action was entered for trial), UGS required leave to issue a third party notice, but did not need leave to make that application; and (b) after 30 August 2025, UGS also required leave to apply. -- 12 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 13 35 UGS brought the present application by chamber summons filed on 30 January 2026, being some: (a) two years and three months since UGS filed its defence; and (b) five months since the action was entered for trial. 36 The plaintiff has advanced the position that, in addressing the issue of delay: (a) the court should be principally concerned with the conduct of, and explanations proffered by UGS; (b) the conduct of the plaintiff is of less significance;23 and (c) the explanations proffered by UGS are inadequate in that they go to UGS's own interests, and do not adequately address the interests of the plaintiff and of the efficient administration of justice. 37 I certainly accept that it is for the defendant to explain any delay in bringing the application. There is also weight in the submission that a defendant may not excuse delay that affects other parties by reference to protecting its own interests. 38 However, while some of the explanation offered by UGS might be described as self-interested, I do not think their explanations are wholly of that kind. 39 The explanations proffered by UGS extend to matters that go to the manner in which the proceedings were being conducted by all parties, including by extending various 'milestones' and conferring in relation to holding settlement negotiations. Nevertheless, in the circumstances identified by the plaintiff at [33(b)], those explanations are, of themselves, not entirely satisfactory. 40 However, in determining whether the delay will likely prejudice the plaintiff, I consider that it is appropriate to take account of the plaintiff's own conduct as it pertains to or may contribute to the overall delay of the proceedings. That is because the prejudice usually recognised as being associated with delay is less likely to be found, or to carry as much weight, when a party has materially contributed to it. 23 ts 34. -- 13 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 14 41 In this case, it is noteworthy that the plaintiff: (a) did not file particulars of damages before entering the action for trial; and (b) of much greater significance, completely recast his pleaded case in February 2026 (being a month after UGS brought this application) - in this regard I note that the ASOC is in effect a substituted statement of claim, in which the plaintiff himself now squarely pleads to the contractual relationship between KC and each of the defendants. 42 On balance, I do not regard the delay in UGS bringing the application, and any associated prejudice to the plaintiff, to outweigh the merits of having the issues raised in the proposed third party proceedings heard and determined in the action. The question of merit is addressed below. What are the merits of the proposed third party claim? 43 At the hearing, both parties took me to, and made submissions regarding the construction of, the provisions of the contracts between KC and each of the defendants. Those submissions were supported by reference to various evidence annexed to the parties' affidavits. 44 However, I accept the submission of UGS as it is outlined in [32(c)]. For that reason, I decline to engage in any detailed consideration of the strength of the proposed third party claim, including by way of construing contractual terms against the (limited) evidence. 45 Consistent with the approach of this court to interlocutory disputes of a similar nature - such as whether to strike out or grant leave to amend a pleading24 or to give summary judgment25 - I consider that the question of merit ought to be limited to whether there is an arguable case against the proposed third party. 46 That is, the question of merit for the purpose of RSC O 19 r 1 is, to my mind, concerned principally with the merit of having the substance of the primary action and third party proceedings dealt with together, subject to there being an arguable case against the third party. 24 See for example Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2] [2022] WASC 442 [39]. 25 See for example Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]; Pigozzo v Mineral Resources Ltd [2022] FCA 1166 [25]. -- 14 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 15 47 It follows that, once the court is satisfied that there is an arguable case, then the exercise of discretion to grant leave under O 19 r 1 is to be exercised having regard to: (a) the connection between the subject matter of the proposed third party proceedings and the matters to be determined in the primary action; and (b) if the proposed third party proceeding is properly regarded as being closely related to the primary action, then the interests of justice will usually weigh in favour of the proceedings being heard and determined together, unless considerations of prejudice and delay sufficiently outweigh such an outcome. 48 In this case, (a) it is not contentious between the parties to the action that: (i) KC and the second defendant are parties to the Works Contract, pursuant to which KC engaged in works on the Site at the time of the plaintiff's alleged accident; (ii) the plaintiff was engaged in labour in connection with the works the subject of the Works Contract at the time of the alleged injury; and (iii) there was a contractual agreement between UGS and KC and that the plaintiff was deployed by UGS under that contract (although the precise clause that applies to that arrangement was the subject of considerable argument); (b) in those circumstances, I am satisfied that for the purposes of RSC O 19 r 1, the TP SOC discloses an arguable case against KC; (c) further, noting: (i) that the plaintiff has, by the ASOC, squarely raised the contractual relationship between KC and each of the defendants; and (ii) the overlap in the nature of the common law and statutory duties asserted by the plaintiff against the defendant and by UGS against KC, -- 15 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 16 I regard the subject matter of the primary action and the proposed third party proceedings to be so closely related that it is in the interests of justice that they be heard and determined together. Conclusion 49 Given my conclusion at [48(c)] and [42], I am satisfied that leave should be granted to UGS to bring the application and to issue a third party notice to KC.26 50 The application is allowed. 51 I will hear the parties as to the precise terms of the orders that should be made, including as to costs. 26 As set out in [54] - [56] hereof. -- 16 of 17 -- [2026] WADC 77 PRINCIPAL REGISTRAR MCGIVERN [2026] WADC 77 (PC) Page 17 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. MB Associate to Registrar 18 AUGUST 2026 -- 17 of 17 --