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 2001PARTIES :
Sharon Agius - Claimant
State of New South Wales - First Opponent
Terry Kesby-Smith - Second Opponent
Michael Pearce - Third OpponentJUDGMENT 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 OpponentSOLICITORS: Cameron Gillingham Boyd - Claimant
I V Knight - First Opponent
Beverley Forster & Associates, Narellan - Second Opponent
Katie Smith, Woy Woy - Third OpponentCATCHWORDS: 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.
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- Case
- [2001] NSWCA 371
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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