ACTEW Corporation Limited v Mihaljevic - [2004] ACTSC 59

ACTEW CORPORATION LIMITED v JOHN IVAN MIHALJEVIC and ORS
[2004] ACTSC 59 (2 July 2004)

PROCEDURE – application to strike out statement of claim as disclosing no cause of action – test to be applied
NEGLIGENCE – duty of care – duty of building certifier to utility service provider – pure economic loss – vulnerability – whether cause of action available
TORT – breach of statutory duty – building certifier – duty to utility service provider – pure economic loss – whether cause of action available

Supreme Court Rules, O 29 r 4; O 61A r 4
Construction Practitioners Registration Act 1998
Building Act 1972, ss 30, 31, 33A, 34, 34A
Building Regulations 1972, regs 6, 15
Utilities Act 2000, ss 13, 14, 123, 124, 125
Scaffolding and Lifts Act 1912 (NSW)
Industrial Relations Act 1988 (Cth)
Strata Titles Act 1973 (NSW)
Dangerous Goods Act 1975 (NSW)
Dangerous Goods Regulation 1978 (NSW)

O’Connor v S P Bray Limited (1937) 56 CLR 464
Byrne v Australian Airlines Limited (1995) 185 CLR 410
J D Bell (Calool) Pty Limited v Shortland County Council (1991) Aust Torts Reports 81-139
Proprietors – Strata Plan No 30234 v Margiz Pty Limited (Supreme Court of New South Wales, Brownie J, 30 June 1993, unreported)
Girkaid Pty Limited v McDonald (Supreme Court of New South Wales, Adams J, 14 December 201, unreported)
John Pfeiffer Pty Limited v Canny (1981) 55 ALJR 638
X (minors) v Bedfordshire County Council (1995) 2 AC 633
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Neptune Oil Co Pty Limited v Fowler (1963) SR (NSW) 530
Jones v Clyde Welshpool Pty Limited (1999) 9 Tas R 391
Woolcock Street Investments Pty Limited v CDG Pty Limited (2004) 78 ALJR 628
Bryan v Maloney (1995) 182 CLR 609
Caltex Oil (Australia) Pty Limited v The Dredge “Willemstad” (1976) 136 CLR 529
Perre v Apand Pty Limited (1999) 198 CLR 180
Hill v Van Erp (1997) 188 CLR 159

No SC 58 of 2004

Coram: Master Harper
Supreme Court of the ACT
Date: 2 July 2004

IN THE SUPREME COURT OF THE       )
  )          No SC 58 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:ACTEW CORPORATION LIMITED
Plaintiff

AND:JOHN IVAN MIHALJEVIC
First Defendant

AND:STRONARCH BUILDING GROUP PTY LIMITED
Second Defendant

AND:BARRY RAID STRONARCH
Third Defendant

ORDER

Coram:  Master Harper
Date:  2 July 2004
Place:  Canberra

THE COURT ORDERS THAT:

The first defendant’s application pursuant to Notice of Motion dated 10 May 2004 be dismissed.
The costs of the application be reserved.

This is an application pursuant to Order 29 r 4, or alternatively the inherent power of the Court for an order that the originating application and statement of claim be struck out as against the first defendant, for failing to disclose a cause of action. The rule is in the following terms:
4 Striking out pleadings
The Court may order any pleading to be struck out, on the ground that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] ACTSC 59
Decision Date

CaseChat Overview and Summary

The case of ACTEW Corporation Limited v Mihaljevic involved an application by the first defendant, John Ivan Mihaljevic, to strike out the plaintiff's statement of claim. The plaintiff, ACTEW Corporation Limited, sought damages for negligence and breach of statutory duty from Mihaljevic, a registered building certifier, for approving plans for a building extension that resulted in the obstruction of the plaintiff's sewerage main. Mihaljevic argued that the plaintiff's claim did not disclose a reasonable cause of action in either negligence or for breach of statutory duty. The court considered whether the statutory provisions in question, specifically sections 34 and 34A of the Building Act 1972, were intended to confer a private right of action, as well as the principles governing recovery for pure economic loss in tort.

The court held that the stringent test for striking out a pleading was not met, as there were respectable arguments available to the plaintiff regarding the conferral of a private right of action under the statutory provisions. The court also noted that while the law on recovery for pure economic loss in tort was still developing, it was not appropriate to deprive the plaintiff of its opportunity for the trial of its case by the Court. Therefore, the application to strike out the statement of claim was dismissed, and the costs of the application were reserved.

Orders