Bevan v Coolahan

Case [2018] NSWDC 410

District Court


New South Wales

Medium Neutral Citation: Bevan v Coolahan [2018] NSWDC 410
Hearing dates: 5, 6, 7 and 10 October 2016; 27, 28, 29 and 30 November 2017; 1, 4 and 5 December 2017; 6 March 2018; 18 and 24 April 2018; 2 May 2018 (written submissions)
Date of orders: 31 August 2018
Decision date: 31 August 2018
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Judgment for the defendants.
(2) Plaintiff pay defendants’ costs.
(3) Liberty to apply in relation to costs.
(4) Exhibits retained for 28 days.

Catchwords: TORT – motor vehicle accident – plaintiff’s injuries as a passenger suffered while travelling for the purpose of buying and injecting drugs prohibited under s 10 Drug Misuse and Trafficking Act 1985 (NSW) – whether the plaintiff was, in terms of the common law defence of joint illegal enterprise, a party to any criminal conduct – impact of failure to plead s 54 Civil Liability Act 2002 (NSW) – contributory negligence – judgment for the defendant
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3A, 3B, 5R, 5S, 54 and Part IA, Div 8
Civil Procedure Act 2005 (NSW), ss 14 and 56
Criminal Code (WA), s 8
Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 11, 12, 19 and 25
Evidence Act 1995 (NSW), ss 41, 128 and 135
Motor Accidents Compensation Act 1999 (NSW), s 138
Road Transport Act 2013 (NSW), ss 111 and 112
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 31.10 and 31.28
Cases Cited: ACCC v Air New Zealand Ltd (No 5) (2012) 301 ALR 352
Australian Postal Commission v Hayes (1989) 23 FCR 320
BHP Pty Co Ltd v Mason (1996) 67 SASR 456
Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (No 1) [2017] NSWSC 1371
Captain v Wosomo [2017] 1 Qd R 222
Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 3) [2017] FCA 60
Cook v Cook (1986) 162 CLR 376
Crescent Funds Management (Aust) Ltd v Crescent Capital Partners Management Pty Ltd [2017] FCAFC 2
Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Ltd (2015) 326 ALR 556
Foong v Ghaly [2017] NSWDC 303
Gala v Preston (1991) 172 CLR 243
Ghunaim v Bart [2004] NSWCA 28
Glover v Australian Ultra Concrete Floors [2003] NSWCA 80
Godbolt v Fittock (1963) 63 SR (NSW) 617
Goodsell v Murphy (2002) 36 MVR 408
Hall v Van der Poel [2009] NSWCA 436
Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265
Harrison v Melhem (2008) 72 NSWLR 380
Holland v Tarlinton (New South Wales Court of Appeal, 18 December 1989, Kirby P, Meagher JA, Hope A-JA)
Hunter v Transport Accident Commission 2005 VSCA 1
Ingot Capital Investments Pty Ltd v Macquarie Capital Markets Limited [2004] NSWSC 40
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206
Jackson v Harrison (1978) 138 CLR 438
Jones v Bradley [2003] NSWCA 81
Jones v Dunkel (1959) 101 CLR 298
Kingham v…

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AGLC
Bevan v Coolahan [2018] NSWDC 410
Case
[2018] NSWDC 410
Decision Date

CaseChat Overview and Summary

The plaintiff in this case, Bevan, sought damages for injuries sustained during a motor vehicle accident. The accident occurred when Bevan, as a passenger, was travelling with the defendant, Coolahan, with the intent to purchase and inject drugs, which were illegal under the Drug Misuse and Trafficking Act 1985 (NSW). The court was tasked with determining whether Bevan's participation in an illegal enterprise with Coolahan barred his claim under the common law defence of joint illegal enterprise. Additionally, the court considered whether Bevan's failure to plead the exclusion under section 54 of the Civil Liability Act 2002 (NSW) impacted his claim, and assessed the issue of contributory negligence in light of Bevan's actions.

The court examined whether Bevan's involvement in the illegal purchase and injection of drugs constituted a joint illegal enterprise with Coolahan, which could potentially absolve Coolahan of liability under the common law defence. The court also assessed the implications of Bevan's failure to plead the exclusion under section 54 of the Civil Liability Act 2002 (NSW), which pertains to the illegal use of drugs. Furthermore, the court considered whether Bevan's contributory negligence, given his participation in illegal activities, should reduce or bar his claim for damages.

The court found that Bevan's participation in the illegal enterprise with Coolahan did indeed constitute a joint illegal enterprise, thereby barring his claim under the common law defence. The court also determined that Bevan's failure to plead the exclusion under section 54 of the Civil Liability Act 2002 (NSW) was a critical omission. Additionally, the court held that Bevan's contributory negligence, due to his involvement in the illegal activities, precluded him from recovering any damages. Consequently, the court ruled in favour of the defendants, dismissing Bevan's claim and ordering him to pay the defendants' costs.

The court made several orders in its judgment, including a dismissal of the plaintiff's claim and an order for the plaintiff to pay the defendants' costs. The court also granted liberty to apply in relation to costs and specified that the exhibits would be retained for 28 days. This comprehensive decision addressed the complex interplay of illegal activities, statutory exclusions, and contributory negligence, leading to a judgment in favour of the defendants.

Orders

Orders of the court

(1) Judgment for the defendants.

(2) Plaintiff pay defendants’ costs.

(3) Liberty to apply in relation to costs.

(4) Exhibits retained for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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