Bacon v Vicsail Pty Ltd - [2024] NSWSC 1155

Supreme Court

New South Wales

Medium Neutral Citation: Bacon v Vicsail PTY LTD [2024] NSWSC 1155
Hearing dates: 22 August 2024
Date of orders: 11 September 2024
Decision date: 12 September 2024
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1)   The plaintiff file his amended statement of claim and serve the same on the first and second defendants by 26 September 2024.
(2)   The first and second defendants file and serve their amended defences to the Amended Statement of Claim by 10 October 2024.
(3)   The proceedings be listed for further directions before the Judge in the Admiralty List on 17 October 2024
(4)   The plaintiff is to serve a copy of this judgment together with the amended statement of claim on the third defendant.
(5)   Costs of the plaintiff’s notice of motion dated 12 July 2024 be plaintiffs or the first defendant’s costs in the motion.

Catchwords:
NEGLIGENCE – Jurisdiction – Admiralty – Sailboat – Keel – Joining of third Defendant – company from USA -- Amended Statement of Claim – capsizing –– proper pleadings --

Legislation Cited:
Australian Consumer Law. s 18,
Civil Liability Act 2002 (NSW). Part IV, s 64(1)(2),
s 5B, s 5D, s 56(1)
Civil Procedure Act 2005 (NSW). s 56(1)
Uniform Civil Procedure Rules 2005 (NSW). rr 11.4 (1)(2), Part 19.1(1)(2)(3), Part 19.2(4), Part 19.4(1) (2)(3), Part 19.5(1)(2)(3), Part 19.6, Schedule 6(a) (h)(j)

Cases Cited:
Commissioner for Fair Trading v Jonval Builders Pty Ltd [2019] NSWSC 1893, [20].
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83
I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109, 128 [57]
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR

Category: Principal judgment
Parties: John Bacon (Plaintiff)
Vicsail (First Defendant)
Bret Perry (Second Defendant)
Farr Yacht Design Limited (Proposed Third Defendant)
Representation:
Counsel:
J.M. Ireland KC (Plaintiff)
C.L.W Street (First Defendant)
K. Lewis (Second Defendant)
Solicitors:
DCB Law (Plaintiff)
Agar Cahalan Maritime (First Defendant)

File Number(s): 2023/00100412

JUDGMENT

This judgment concerns an application by the plaintiff for leave to join a United States corporation known as Farr Yacht Design Limited (‘Farr’) as a third defendant to these proceedings. The plaintiff also requests leave to amend his statement of claim and transfer the matter to the Admiralty list.
The plaintiff is John Bacon (‘Bacon’). The first defendant is Vicsail Pty Limited (‘Vicsail’), the second defendant is Bret Perry (‘Perry’), the third defendant Farr is sought to be joined in the proceedings. The plaintiff is represented by J.M Ireland KC of counsel. The first defendant is represented by C.L.W Street of counsel. The third defendant is represented by K. Lewis. The second defendant did not oppose the orders sought. The plaintiff and the second defendant have agreed to costs of this motion between themselves.
By way of notice of motion filed 5 July 2024 the plaintiff relevantly seeks,

Leave to join a…

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: [2024] NSWSC 1155
Decision Date: 12 September 2024

CaseChat Overview and Summary

The plaintiff, Bacon, brought an action against Vicsail Pty Ltd in the Federal Circuit Court of Australia, alleging negligence in relation to a sailing incident. Bacon claimed that the defendant had failed to properly maintain and inspect a keel on a sailboat, resulting in the vessel capsizing and causing him injury. The defendant, Vicsail Pty Ltd, was a company based in Australia. The plaintiff subsequently sought to join a third defendant, a United States-based company, in the proceedings. This was based on the argument that the United States company was responsible for the manufacture and supply of the keel.

The central legal issues before the court were whether the Federal Circuit Court had jurisdiction to hear the case, given the involvement of an international company, and whether the plaintiff's amended statement of claim was sufficient to include the third defendant. Additionally, the court needed to determine if the plaintiff's allegations of negligence were properly pleaded.

The court held that it did indeed have jurisdiction to hear the case, as the Federal Circuit Court of Australia has admiralty jurisdiction over maritime matters. The court also found that the plaintiff's amended statement of claim was sufficient to join the third defendant, as it provided adequate particulars to inform the third defendant of the claims against them. Furthermore, the court determined that the plaintiff's allegations of negligence were adequately pleaded, as they included the necessary factual and legal elements to establish a cause of action. The court dismissed the defendant's challenge to the jurisdiction and the sufficiency of the pleadings.

Orders