Barry v City West Water Limited - [2002] FCA 1388

FEDERAL COURT OF AUSTRALIA
Barry v City West Water Limited [2002] FCA 1388
KEVIN FRANCIS PATRICK BARRY & ANOR v CITY WEST WATER LIMITED AND ANOR
V 569 of 1999
ALLSOP J
7 NOVEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

V 569 of 1999

BETWEEN:

KEVIN FRANCIS PATRICK BARRY
FIRST APPLICANT

STREAMLINE DRAINS & PIPELINES PTY LIMITED
(ACN 059 665 539)
SECOND APPLICANT

AND:

CITY WEST WATER LIMITED
(ACN 066 902 467)
FIRST RESPONDENT

BRAMBLES AUSTRALIA LIMITED
(ACN 000 164 938
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

7 NOVEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to O 29 r 2 of the Federal Court Rules, the decision of the questions raised by paragraph 13 of the amended defence of the second respondent, the amended reply of the applicants and the amended rejoinder of the second respondent be heard before the trial of any other question in these proceedings.

2.The proceedings as against the second respondent be struck out with no order as to costs in respect of any costs incurred in the proceedings up to 31 December 2000.

3.The applicants each be restrained from instituting in any court or tribunal any proceedings against the second respondent:
(a)substantially in the form of these proceedings; or
(b)claiming any of the relief claimed in these proceedings.

4.The applicants pay the costs of the second respondent of the proceedings after 31 December 2000, such costs to be paid as to 75 % of the costs on a full indemnity basis, such costs to include all costs incurred by the second respondent except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to these exceptions, the second respondent is completely indemnified for its costs, and as to 25% of the costs on a party-party basis.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

V 569 of 1999

BETWEEN:

KEVIN FRANCIS PATRICK BARRY
FIRST APPLICANT

STREAMLINE DRAINS & PIPELINES PTY LIMITED
(ACN 059 665 539)
SECOND APPLICANT

AND:

CITY WEST WATER LIMITED
(ACN 066 902 467)
FIRST RESPONDENT

BRAMBLES AUSTRALIA LIMITED
(ACN 000 164 938)
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE:

7 NOVEMBER 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In this matter I delivered my reasons for judgment on 3 October 2002, making an order requiring the second respondent, Brambles Australia Limited, to bring in draft short minutes of order giving effect to my reasons. That has been done.
The second respondent appears today seeking orders in accordance with the draft orders supplied pursuant to Order 1 made on 3 October 2002. No appearance is made for the applicants. My associate received a letter dated 1 November 2002 from the erstwhile solicitors for the applicants indicating that they would not be appearing today. Enclosed with that letter, sent by facsimile, were two pages of written submissions, not…

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 Barry v City West Water Limited

Details

AGLC: Barry v City West Water Limited [2002] FCA 1388
Case: [2002] FCA 1388
Decision Date: 7 NOVEMBER 2002

CaseChat Overview and Summary

The case of Barry v City West Water Limited involved an action brought by the applicants against City West Water Limited. The dispute centred on claims for damages arising from alleged negligence and breaches of statutory duty by the second respondent, City West Water Limited, in relation to the quality of water supplied. The matter was heard in the Federal Court of Australia. The applicants sought compensation for personal injury, property damage, and economic loss resulting from the alleged poor water quality.

The central legal issues before the court were whether the claims against City West Water Limited were statute-barred and if there were any grounds to strike out the proceedings as against the second respondent. The court had to determine if the applicants' claims were time-barred by the applicable statutes of limitation, and if there were any procedural grounds to dismiss the proceedings against the second respondent. Additionally, the court needed to assess whether an injunction should be issued to prevent the applicants from re-instituting the same claims against the second respondent in any court or tribunal.

The court found that the applicants' claims were statute-barred, and there were procedural grounds to strike out the proceedings against the second respondent. The court ruled that the applicants' claims were time-barred as they were not commenced within the statutory limitation period. Furthermore, the court held that there were procedural defects in the way the applicants had pursued their claims, warranting the striking out of the proceedings against the second respondent. Consequently, the court ordered the proceedings to be dismissed with no order as to costs incurred up to a specified date, while also imposing a restraint on the applicants from re-instituting the same claims. The applicants were further ordered to pay the second respondent's costs, partially on a full indemnity basis and partially on a party-party basis.

Orders

Orders of the court

1. Pursuant to O 29 r 2 of the Federal Court Rules, the decision of the questions raised by paragraph 13 of the amended defence of the second respondent, the amended reply of the applicants and the amended rejoinder of the second respondent be heard before the trial of any other question in these proceedings.

2. The proceedings as against the second respondent be struck out with no order as to costs in respect of any costs incurred in the proceedings up to 31 December 2000.

3. The applicants each be restrained from instituting in any court or tribunal any proceedings against the second respondent:

(a) substantially in the form of these proceedings; or

(b) claiming any of the relief claimed in these proceedings.

4. The applicants pay the costs of the second respondent of the proceedings after 31 December 2000, such costs to be paid as to 75 % of the costs on a full indemnity basis, such costs to include all costs incurred by the second respondent except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to these exceptions, the second respondent is completely indemnified for its costs, and as to 25% of the costs on a party-party basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	V 569 of 1999

BETWEEN:	KEVIN FRANCIS PATRICK BARRY FIRST APPLICANT STREAMLINE DRAINS & PIPELINES PTY LIMITED (ACN 059 665 539) SECOND APPLICANT
AND:	CITY WEST WATER LIMITED (ACN 066 902 467) FIRST RESPONDENT BRAMBLES AUSTRALIA LIMITED (ACN 000 164 938 SECOND RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	7 NOVEMBER 2002
WHERE MADE:	SYDNEY

JUDGE:	ALLSOP J
DATE:	7 NOVEMBER 2002
PLACE:	SYDNEY