Benn v Weber Bros Circus and Logistics Pty Ltd - [2017] NSWDC 171

District Court

New South Wales

Medium Neutral Citation: Benn v Weber Bros Circus & Logistics Pty Ltd [2017] NSWDC 171
Hearing dates: 15 June 2017
Date of orders: 15 June 2017
Decision date: 15 June 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D at 11:05am – no appearance.
(2) Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D a second time at 12:25pm – no appearance.
(3) On the application of the plaintiff, the Defence is struck out pursuant to rr 12.7 and 14.28 Uniform Civil Procedure Rules 2005 (NSW); proceedings to continue by way of assessment of damages.
(4) Judgment for the plaintiff for the sum of $45,500.
(5) Defendant pay plaintiff’s costs.
(6) Plaintiff is to take out a copy of Gibson DCJ’s ex tempore judgment and to serve it on the defendant, Weber Bros Circus & Logistics Pty Ltd.
(7) Exhibits remain with the file until further order.

Catchwords: TORT – personal injury – defendant fails to appear – application for summary judgment – dilatory conduct of proceedings by defendant - defence hopelessly pleaded – failure to verify defence – references in defence to another corporation – defence struck out – assessment of damages
Legislation Cited: Civil Procedure Act 2005 (NSW), s 61
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 14.28, 29.7 and 42.35
Cases Cited: Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268
Green v Pearson [2014] QCA 110
Hunter Helicopter Charters Pty Ltd v ACN 133 019 093 Pty Ltd [2017] QDC 62
Reece v Reece (1994) 19 MVR 103
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Stone v Smith (1887) 35 Ch D 188
Varga v Galea [2011] NSWCA 76
Texts Cited: P. Taylor, Dr E. Elms, M. Meek SC, The Hon Justice G. Bellew, Ritchie's Uniform Civil Procedure NSW (LexisNexis, Australia)
Category: Principal judgment
Parties: Plaintiff: Angela Grace Benn
Defendant: Weber Bros Circus & Logistics Pty Ltd
Representation:
Counsel:
Plaintiff: Mr A Campbell
Defendant: No appearance
Solicitors:
Plaintiff: Shad Partners Compensation Lawyers
Defendant: No appearance

File Number(s): 2015/246897
Publication restriction: None

Judgment

HER HONOUR: The plaintiff, by Amended Statement of Claim filed on 11 September 2015, brings proceedings for damages for the circumstances in which she suffered injury on 23 March 2014 when she attended the Great Moscow Circus at Hoxton Park in New South Wales.
The circumstances of the accident were as follows. The plaintiff and her family attended a circus performance which was held in what is called, in the statement of claim, a “big top”. They entered from comparative daylight into pitch dark. According to the plaintiff’s evidence, it was impossible to see what was happening in the tent. Although the Amended Statement of Claim refers to the plaintiff and her family being “ushered” to the seating area of the arena, she explained that there was in fact nobody there to guide them and there was…

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: [2017] NSWDC 171
Decision Date: 15 June 2017

CaseChat Overview and Summary

In the matter of Benn v Weber Bros Circus and Logistics Pty Ltd, the plaintiff, Benn, brought a personal injury claim against the defendant, Weber Bros Circus and Logistics Pty Ltd. The dispute arose after Benn suffered injuries during an event organised by the defendant. The case was heard in the Local Court of New South Wales.

The court was required to decide several legal issues. Firstly, whether the defendant’s failure to appear in court justified the striking out of their defence. Secondly, whether the plaintiff was entitled to summary judgment in light of the defendant's absence and the defective nature of their defence. The court also needed to determine the appropriate assessment of damages for the plaintiff.

The court found that Weber Bros Circus & Logistics Pty Ltd had failed to appear in court on two separate occasions. Furthermore, their defence was hopelessly pleaded and failed to verify the claims made. The defence also contained references to another corporation, which was not a party to the proceedings. As a result, the court struck out the defence pursuant to rules 12.7 and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). Consequently, the proceedings continued by way of assessment of damages. The court awarded the plaintiff, Benn, a sum of $45,500 in damages and ordered the defendant to pay the plaintiff’s costs. The plaintiff was also required to serve a copy of the judgment on the defendant. Exhibits were to remain with the file until further order.

Orders

Orders of the court

(1) Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D at 11:05am – no appearance.

(2) Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D a second time at 12:25pm – no appearance.

(3) On the application of the plaintiff, the Defence is struck out pursuant to rr 12.7 and 14.28 Uniform Civil Procedure Rules 2005 (NSW); proceedings to continue by way of assessment of damages.

(4) Judgment for the plaintiff for the sum of $45,500.

(5) Defendant pay plaintiff’s costs.

(6) Plaintiff is to take out a copy of Gibson DCJ’s ex tempore judgment and to serve it on the defendant, Weber Bros Circus & Logistics Pty Ltd.

(7) Exhibits remain with the file until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Benn v Weber Bros Circus & Logistics Pty Ltd [2017] NSWDC 171
Hearing dates:	15 June 2017
Date of orders:	15 June 2017
Decision date:	15 June 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D at 11:05am – no appearance. (2) Weber Bros Circus & Logistics Pty Ltd called three times outside Court 13D a second time at 12:25pm – no appearance. (3) On the application of the plaintiff, the Defence is struck out pursuant to rr 12.7 and 14.28 Uniform Civil Procedure Rules 2005 (NSW); proceedings to continue by way of assessment of damages. (4) Judgment for the plaintiff for the sum of $45,500. (5) Defendant pay plaintiff’s costs. (6) Plaintiff is to take out a copy of Gibson DCJ’s ex tempore judgment and to serve it on the defendant, Weber Bros Circus & Logistics Pty Ltd. (7) Exhibits remain with the file until further order.
Catchwords:	TORT – personal injury – defendant fails to appear – application for summary judgment – dilatory conduct of proceedings by defendant - defence hopelessly pleaded – failure to verify defence – references in defence to another corporation – defence struck out – assessment of damages
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 61 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 14.28, 29.7 and 42.35
Cases Cited:	Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268 Green v Pearson [2014] QCA 110 Hunter Helicopter Charters Pty Ltd v ACN 133 019 093 Pty Ltd [2017] QDC 62 Reece v Reece (1994) 19 MVR 103 Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 Stone v Smith (1887) 35 Ch D 188 Varga v Galea [2011] NSWCA 76
Texts Cited:	P. Taylor, Dr E. Elms, M. Meek SC, The Hon Justice G. Bellew, Ritchie's Uniform Civil Procedure NSW (LexisNexis, Australia)
Category:	Principal judgment
Parties:	Plaintiff: Angela Grace Benn Defendant: Weber Bros Circus & Logistics Pty Ltd
Representation:	Counsel: Plaintiff: Mr A Campbell Defendant: No appearance Solicitors: Plaintiff: Shad Partners Compensation Lawyers Defendant: No appearance
File Number(s):	2015/246897
Publication restriction:	None