Auguste v Nikolyn Pty Ltd - [2013] FCCA 1630

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUGUSTE v NIKOLYN PTY LTD & ANOR

[2013] FCCA 1630

Catchwords:
PRACTICE & PROCEDURE – Application for an adjournment – principles – administration of justice – interests of justice – objects of the legislation.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth) ss.3 and 42

Federal Circuit Court Rules 2001 (Cth) r.1.03

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Cann vCommonwealth Bank of Australia (No. 5) [2011] FMCA 768

Applicant:

ROBERT STEPHEN AUGUSTE

First Respondent:

NIKOLYN PTY LTD ACN 078 833 977

Second Respondent:

DONATO COLASANTE

File Number:

PEG 324 of 2011

Judgment of:

Judge Lucev

Hearing date:

11 October 2013

Date of Last Submission:

11 October 2013

Delivered at:

Perth

Delivered on:

11 October 2013

REPRESENTATION

Counsel for the Applicant:

Mr P G Clifford

Solicitors for the Applicant:

Alan Rumsley

Counsel for the Respondents:

Ms N Breach

Solicitors for the Respondents:

D’Angelo Legal

ORDERS

The first and second respondents’ oral interim application to adjourn the hearing listed to commence on 28 October 2013 is dismissed.
Orders (3)-(8) of the Court’s Orders made 15 May 2013 be set aside.
Except in the situation were evidence has already been filed in affidavit form, evidence be taken orally at the hearing listed to commence on 28 October 2013.
The first and second respondents pay the applicant’s costs of the first and second respondents’ oral interim application to adjourn the hearing listed on 28 October 2013 in the sum of $997.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 324 of 2011

ROBERT STEPHEN AUGUSTE

Applicant

And

NIKOLYN PTY LTD ACN 078 833 977

First Respondent

DONATO COLASANTE

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons – edited from transcript)

Introduction

The issue before the Court relates to what the Court has been taken to be an oral application by the respondents for the adjournment of the hearing of this matter which is listed for 4 days commencing on 28 October 2013. That is in 17 days’ time. It is appropriate in the circumstances to deal with the history of the matter to this point in time.

Litigation history

The matter was first the subject of Court orders on 2 December 2011, and on that occasion, orders were made which would have seen the pleadings concluded by 20 January 2012, the matter referred to mediation and otherwise for a further directions hearing on 14 May 2012. A mediation was subsequently conducted and the pleadings largely completed. The mediation was adjourned to a later date.
There was a further directions hearing on 14 May 2012, but that resulted in the directions hearing being adjourned to a later date, and there was subsequently another three directions hearings with the matter being adjourned to a further later date. On 23 July 2012, the matter came back on for a directions once again, and on that date, the Court made orders for the filing of a Scott schedule and defence…

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.

Continue reading Auguste v Nikolyn Pty Ltd

Details

AGLC: AUGUSTE v NIKOLYN PTY LTD & ANOR [2013] FCCA 1630
Case: [2013] FCCA 1630
Decision Date: 11 October 2013

CaseChat Overview and Summary

In *Auguste v Nikolyn Pty Ltd*, the Supreme Court of Western Australia was asked to determine whether the respondent, Nikolyn Pty Ltd, had breached its duty of care to the appellant, Mr Auguste, by failing to ensure the safety of a ladder used by Mr Auguste in the course of his employment. Mr Auguste suffered injuries when the ladder he was using collapsed.

The central legal issue before the Court was whether Nikolyn Pty Ltd had breached its duty of care to Mr Auguste. This involved considering whether the respondent had taken all reasonably practicable steps to ensure the safety of the ladder, and whether the risk of the ladder collapsing was foreseeable and could have been prevented by reasonable precautions. The Court also had to consider the application of the *Occupational Safety and Health Act 1984* (WA) and the relevant regulations concerning the use of ladders in the workplace.

Judge Lucev found that Nikolyn Pty Ltd had breached its duty of care. The Court reasoned that the respondent had failed to implement adequate procedures for the inspection and maintenance of its ladders, and that the ladder in question was in a dangerous condition due to a lack of regular checks. The Court applied the principles of negligence, emphasizing that an employer has a positive duty to take reasonable steps to prevent foreseeable harm to its employees. The Court noted that the risk of a ladder collapsing was a foreseeable risk, and that the measures taken by the respondent were not reasonably practicable in the circumstances.

The Court ordered that Nikolyn Pty Ltd was liable for the injuries sustained by Mr Auguste.

Orders