Brennand v Hartung - [2013] ACTSC 132

KATHRYN BRENNAND & ANOR v MAUREEN HARTUNG & ANOR
[2013] ACTSC 132 (18 July 2013)

PRACTICE AND PROCEDURE – pleadings – causes of action in contract, negligence and defamation – application to join additional defendant to claim in defamation and for money lent – whether causes of action capable of succeeding – contract and negligence counts doomed to fail – whether money claim should be joined in the same action – whether plaintiffs should be permitted to amend pleadings in defamation further – effect of Court Procedures Rules 2006, r 21 – application to join further defendant refused – action dismissed

Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 45
Court Procedures Rules 2006 (ACT), rr 210, 211, 220, 223
Education Act 2004 (ACT)
Limitation Act 1985 (ACT), s 21B

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Cassar v Network Ten Pty Limited [2012] NSWSC 680
JC Williamson Limited v Lukey and Mulholland (1931) 45 CLR 282

No. SC 110 of 2012

Judge: Master Harper
Supreme Court of the ACT

Date: 18 July 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 110 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:KATHRYN BRENNAND

First plaintiff

AND:BRIAN JONATHAN NAUGHTON

Second plaintiff

AND: MAUREEN HARTUNG

First defendant

AND:BEST PRACTICE EDUCATION GROUP LIMITED T/AS BLUE GUM COMMUNITY SCHOOL

Second defendant

ORDER

Judge:  Master Harper
Date:  18 July 2013
Place:  Canberra

THE COURT ORDERS THAT:

the plaintiffs’ application to joint Felicity Lewer as a defendant be dismissed.

the action be dismissed.

the defendants’ costs be paid by the plaintiffs.

the plaintiffs pay the costs of the proposed third defendant Felicity Lewer.

This action was commenced in April 2012. The plaintiffs are the parents of a daughter aged eight. The first defendant is the principal and the second defendant the owner and operator of the Blue Gum Community School at Hackett. The primary grievance of the plaintiffs is that the school offered their daughter a place but shortly afterwards withdrew the offer.

The first plaintiff commenced these proceedings in April 2012 without representation by a solicitor. She sought judicial review of the decision of the first defendant to withdraw the offer, arguing that the decision had been made pursuant to the Education Act 2004. In addition she sought prerogative relief, specific performance of a contract, damages for negligence and damages for defamation.

For reasons which I published on 10 August 2012, I dismissed the applications for judicial review and prerogative relief, and dismissed an application for extension of time to seek judicial review. I ordered that the proceeding continue as if it had been commenced by originating claim, that the second plaintiff be joined, and that the plaintiffs file and serve a statement of claim by a specified date.

The matter came before me again on 21 September 2012. I made orders about the costs of the earlier application. I ordered that a statement of claim filed by the plaintiffs on 7…

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 Brennand v Hartung

Details

AGLC: Brennand v Hartung [2013] ACTSC 132
Case: [2013] ACTSC 132
Decision Date: 18 July 2013

CaseChat Overview and Summary

The case of Brennand v Hartung involved an application by the plaintiffs to join a third defendant, Felicity Lewer, to their existing claim and to add a new cause of action for money lent. The original defendants were being sued for defamation, contract, and negligence. The plaintiffs sought to amend their pleadings to include these additional claims and defendants. The application was brought before the court under the Court Procedures Rules 2006, specifically rule 21, which governs the amendment of pleadings and the addition of parties. The court was required to decide whether the additional defendant could be joined, and if the new cause of action for money lent should be included in the same action. Additionally, the court had to determine if the plaintiffs should be permitted to amend their pleadings in relation to the defamation claim further.

The court found that the causes of action in contract and negligence were unlikely to succeed and were therefore doomed to fail. It was determined that the money claim should not be joined in the same action as the other causes of action. Furthermore, the court held that the plaintiffs should not be permitted to amend their pleadings in relation to the defamation claim further. The court reasoned that allowing the amendment would cause substantial injustice to the defendants and would not be in the interests of justice. The court also noted that the plaintiffs had not shown any reasonable prospect of success on the new cause of action for money lent. Consequently, the application to join the further defendant was refused, and the action was dismissed.

The court made several orders to finalise the proceedings. Firstly, the plaintiffs' application to join Felicity Lewer as a defendant was dismissed. Secondly, the action was dismissed with the defendants' costs being paid by the plaintiffs. Lastly, the plaintiffs were ordered to pay the costs of the proposed third defendant Felicity Lewer. These orders reflect the court's determination that the plaintiffs' claims were without merit and that allowing further amendments and the joining of additional defendants would not serve the interests of justice.

Orders

Orders of the court

1. the plaintiffs’ application to joint Felicity Lewer as a defendant be dismissed.

2. the action be dismissed.

3. the defendants’ costs be paid by the plaintiffs.

4. the plaintiffs pay the costs of the proposed third defendant Felicity Lewer.

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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