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Agius v New South Wales

Agius v New South Wales

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CITATION: Agius v State of New South Wales [2001] NSWCA 371

FILE NUMBER(S): CA 40730/99

HEARING DATE(S): 22 November 2000, 20 July 2001

JUDGMENT DATE:
23 October 2001

PARTIES :

Sharon Agius - Claimant
State of New South Wales - First Opponent
Terry Kesby-Smith - Second Opponent
Michael Pearce - Third Opponent

JUDGMENT OF: Priestley JA at 1; Powell JA at 2; Giles JA at 3

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 920/98

LOWER COURT
JUDICIAL OFFICER : Freeman DCJ

COUNSEL: B J Gross QC & T Boyd - Claimaint
T H Barrett - First Opponent
S Smith - Second Opponent
R N Winfield - Third Opponent

SOLICITORS: Cameron Gillingham Boyd - Claimant
I V Knight - First Opponent
Beverley Forster & Associates, Narellan - Second Opponent
Katie Smith, Woy Woy - Third Opponent

CATCHWORDS: NEGLIGENCE - injury at premises of a voluntary organisation providing services to the handicapped - State provided funds for the organisation's programme - claims against State, President of organisation and manager of organisation - whether to be struck out on pleading grounds - whether maintainable causes of action on facts - discussion of different bases for summary disposal - of unsatisfactory cause taken when applications for summary disposal heard - and of duties of care arguably owed by State, President and manager. D

CASES CITED:
Agar v Hyde (2000) 201 CLR 552;
Brewer Brothers v Canada (1991) 8 CCLT (2d) 45;
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1;
Curran v Northern Ireland Co-operative Housing Association Ltd (1987) 1 AC 718;
Day v William Hill (Park Lane) Ltd (1949) 1 KB 632;
Dey v Victorian Railways Commissioners (1949) 78 CLR 62;
Dougherty v Nationwide News Pty Ltd (1968) 88 WN (Pt 1) 146;
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125;
Laurance v Norreys (1890) LR 15 App Cas 210;
Penthouse Publications Ltd v McWilliam (CA, 14 March 1991, unreported);
Perre v Apand Pty Ltd (1999) 198 CLR 180;
Peter Kent Developments Pty Ltd v Australia and New Zealand Banking Group Ltd (Hunt J, 6 May 1980, unreported);
Reid v Rusk-Tompkins Group Pty Ltd (1990) 1 WLR 212;
Tampion v Anderson (1973) VR 321;
Van Oppen v Clerk to the Bedford Charity Trustees (1990) 1 WLR 235;
Webster v Lampard (1993) 177 CLR 598.

DECISION: (1) Extend time within which the claimant may apply for leave to appeal and grant leave to appeal; (2) Dismiss the appeal with costs as between the claimant and the first and second opponents and refuse leave to file an amended statement of claim between those parties; (3) Dismiss the appeal as between the claimant and the third opponent without any order as to costs and grant leave to file an amended statement of claim as between those parties, the amended statement of claim to be filed and served within 21 days from today's date.

IN…

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: [2001] NSWCA 371
Decision Date: 23 October 2001

CaseChat Overview and Summary

The case of *Agius v New South Wales* concerned claims of negligence brought by the claimant against the State of New South Wales, the President of a voluntary organisation providing services to handicapped individuals, and the manager of that organisation. The dispute arose from an injury sustained by the claimant at the premises of the voluntary organisation. The defendants sought to have the claims struck out on pleading grounds, arguing that the causes of action were not maintainable on the facts presented. The matter was heard by Priestley, Powell, and Giles JJA in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the claims against the State, the President, and the manager disclosed a cause of action that should proceed to trial, or if they were so deficient in their pleadings as to warrant summary disposal. The court was required to consider the various bases upon which applications for summary dismissal could be made and to determine whether the claims, as pleaded, were so unsatisfactory as to justify striking them out. This involved an examination of the duties of care arguably owed by each of the defendants to the claimant.

The Court of Appeal ultimately dismissed the appeal as between the claimant and the first and second opponents (the State and the President), refusing leave to file an amended statement of claim. However, the appeal was dismissed as between the claimant and the third opponent (the manager) without an order as to costs, and leave was granted to file an amended statement of claim within 21 days. The court also extended the time for the claimant to apply for leave to appeal and granted that leave.

Orders

Orders of the court

(1) Extend time within which the claimant may apply for leave to appeal and grant leave to appeal; (2) Dismiss the appeal with costs as between the claimant and the first and second opponents and refuse leave to file an amended statement of claim between those parties; (3) Dismiss the appeal as between the claimant and the third opponent without any order as to costs and grant leave to file an amended statement of claim as between those parties, the amended statement of claim to be filed and served within 21 days from today's date.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Agius v State of New South Wales [2001] NSWCA 371
FILE NUMBER(S):	CA 40730/99
HEARING DATE(S):	22 November 2000, 20 July 2001
JUDGMENT DATE:	23 October 2001
PARTIES :	Sharon Agius - Claimant State of New South Wales - First Opponent Terry Kesby-Smith - Second Opponent Michael Pearce - Third Opponent
JUDGMENT OF:	Priestley JA at 1; Powell JA at 2; Giles JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 920/98
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL:	B J Gross QC & T Boyd - Claimaint T H Barrett - First Opponent S Smith - Second Opponent R N Winfield - Third Opponent
SOLICITORS:	Cameron Gillingham Boyd - Claimant I V Knight - First Opponent Beverley Forster & Associates, Narellan - Second Opponent Katie Smith, Woy Woy - Third Opponent
CATCHWORDS:	NEGLIGENCE - injury at premises of a voluntary organisation providing services to the handicapped - State provided funds for the organisation's programme - claims against State, President of organisation and manager of organisation - whether to be struck out on pleading grounds - whether maintainable causes of action on facts - discussion of different bases for summary disposal - of unsatisfactory cause taken when applications for summary disposal heard - and of duties of care arguably owed by State, President and manager. D
CASES CITED:	Agar v Hyde (2000) 201 CLR 552; Brewer Brothers v Canada (1991) 8 CCLT (2d) 45; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Curran v Northern Ireland Co-operative Housing Association Ltd (1987) 1 AC 718; Day v William Hill (Park Lane) Ltd (1949) 1 KB 632; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Dougherty v Nationwide News Pty Ltd (1968) 88 WN (Pt 1) 146; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Laurance v Norreys (1890) LR 15 App Cas 210; Penthouse Publications Ltd v McWilliam (CA, 14 March 1991, unreported); Perre v Apand Pty Ltd (1999) 198 CLR 180; Peter Kent Developments Pty Ltd v Australia and New Zealand Banking Group Ltd (Hunt J, 6 May 1980, unreported); Reid v Rusk-Tompkins Group Pty Ltd (1990) 1 WLR 212; Tampion v Anderson (1973) VR 321; Van Oppen v Clerk to the Bedford Charity Trustees (1990) 1 WLR 235; Webster v Lampard (1993) 177 CLR 598.
DECISION:	(1) Extend time within which the claimant may apply for leave to appeal and grant leave to appeal; (2) Dismiss the appeal with costs as between the claimant and the first and second opponents and refuse leave to file an amended statement of claim between those parties; (3) Dismiss the appeal as between the claimant and the third opponent without any order as to costs and grant leave to file an amended statement of claim as between those parties, the amended statement of claim to be filed and served within 21 days from today's date.