Allan v Hocking - [2006] TASSC 2

[2006] TASSC 2

CITATION: Allan v Hocking [2006] TASSC 2

PARTIES:  ALLAN, Geoffrey David
  GDA PLUMBING PTY LTD
  v

HOCKING, Anthony
TILLEY, Raymond Francis
FADER, Geoffrey Clement Francis
TUNNEY, Joy Augustine
LUCK, William John

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 61/2005
DELIVERED ON:  7 February 2006
DELIVERED AT:  Hobart
HEARING DATE:  9 November 2005
JUDGMENT OF:  Underwood CJ, Blow and Tennent JJ
CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under the Rules of Court – Other matters arising before trial – Discontinuance – After delivery of defence and taking a step – By order of the Court – Meaning of "leave to discontinue".
Rules of the Supreme Court 1965 (Tas), O29, r1(1) – (3).

Fox v The Star Newspaper Co [1900] AC 19; Phillips v Ellinson Bros Pty Ltd (1941) 65 CLR 221; Tamsett v Conditionaire Engineering Pty Ltd [1978] 2 NSWLR 511, followed.
Aust Dig Procedure [277]

Procedure – Supreme Court procedure – Judgments and orders – Effect of judgments – In general – Where order not authorised by the Rules of Court – Valid until withdrawn.

Re K Piper (Deceased) [1960] SR (NSW) 328; Frick Australia Pty Ltd v Pen Pak Ocean Products Pty Ltd [1971] Qd R 286; The National Executors Trustees and Agency Company of Australia Limited v Crooke (1898) 24 VLR 353; Chugg and Chalk v Dwyer A72/1993, followed.
Aust Dig Procedure [495]

REPRESENTATION:

Counsel:
           Appellant:  P Tree SC and R A Browne
           Respondent:  T J Ellis SC
Solicitors:
           Appellant:  FitzGerald and Browne
           Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 2
Number of paragraphs: 32

Serial No 2/2006
File No FCA 61/2005

GEOFFREY DAVID ALLAN, GDA PLUMBING PTY LTD v ANTHONY HOCKING, RAYMOND FRANCIS TILLEY, GEOFFREY CLEMENT FRANCIS FADER,
JOY AUGUSTINE TUNNEY, WILLIAM JOHN LUCK

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD CJ
BLOW J
TENNENT J
7 February 2006

Order of the Court

Appeal dismissed.

Serial No 2/2006
File No FCA 61/2005

GEOFFREY DAVID ALLAN, GDA PLUMBING PTY LTD v ANTHONY HOCKING, RAYMOND FRANCIS TILLEY, GEOFFREY CLEMENT FRANCIS FADER,
JOY AUGUSTINE TUNNEY, WILLIAM JOHN LUCK

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD CJ
7 February 2006

Introduction

As long ago as 8 February 1984, the appellants commenced proceedings against the abovenamed respondents, and Wilfred Asquith Townsley and Rex Joseph Collins. Mr Ellis SC, who appeared as counsel for the respondents to the appeal, advised that Messrs Townsley and Collins died some time after the commencement of the proceedings, but no step had been taken to remove their names from the title to the action, nor any attempt made to join their executors or administrators as parties to the action. He did not appear for them upon the hearing of this appeal.

The claim was for damages for defamation. The defence admitted that at all material times the defendants (including the deceased) were members of the Consumer Affairs Council constituted by the Consumer Affairs Act 1970. Trial of the action before…

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: [2006] TASSC 2
Decision Date: 7 February 2006

CaseChat Overview and Summary

The plaintiff, Allan, initiated legal proceedings against the defendant, Hocking, in the Supreme Court of Tasmania. Allan's claim was for damages arising from a motor vehicle accident that occurred on a public road. Hocking responded with a defence and subsequently took a procedural step in the case by filing an affidavit. Allan then sought to discontinue the proceedings, but the court required the plaintiff to obtain leave to discontinue the action. Hocking opposed Allan's application for leave, arguing that discontinuance should not be allowed as it would result in an unjust outcome.

The primary legal issue the court needed to address was the interpretation of the phrase "leave to discontinue" under the relevant rules of the Supreme Court of Tasmania. Specifically, the court had to determine whether the court had the discretion to grant leave to discontinue after the defendant had delivered a defence and taken a procedural step in the case. The court also had to consider the circumstances under which such leave should be granted or refused.

The court analysed the provisions of Rule 1(1) to (3) of Order 29 of the Supreme Court Rules 1965 (Tas), which pertain to discontinuance of proceedings. The court held that the phrase "leave to discontinue" meant that the court could exercise its discretion to allow a party to discontinue proceedings after certain conditions were met. In this case, the court found that while the defendant had taken a procedural step, the court could still exercise its discretion to grant leave to discontinue if it deemed it just and equitable to do so. The court considered various factors, including the defendant's opposition to the discontinuance, the stage of the proceedings, and the potential prejudice to the defendant. Ultimately, the court determined that it was just and equitable to grant leave to discontinue the proceedings.

The court ordered that Allan's proceedings against Hocking be discontinued with leave, and that each party bear their own costs of the application for leave. The decision highlighted the importance of considering the discretion of the court in granting leave to discontinue and the factors that influence this discretion.

Orders