Brennand v Hartung - [2012] ACTSC 150

KATHRYN BRENNAND & ANOR v MAUREEN HARTUNG & ANOR
[2012] ACTSC 150 (28 September 2012)

PRACTICE AND PROCEDURE – pleadings – counts in breach of contract, negligence and defamation – claim by parents against school and principal – dispute about enrolment of their child at school – defects in pleading – Statement of Claim struck out – plaintiffs given leave to file amended Statement of Claim – application by the defendants for summary judgment refused – consequential orders as to costs

Administrative Decisions (Judicial Review) Act 1989
Civil Law (Wrongs) Act 2002 Part 3.2, Chapter 4, s 35, s 139(F)
Court Procedures Rules 2006

Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20
Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132

No. SC 110 of 2012

Judge: Master Harper
Supreme Court of the ACT

Date: 28 September 2012

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 EDUATION GROUP LIMITED T/AS BLUE GUM COMMUNITY SCHOOL
(ACN 081 081 423)

Second Defendant

ORDER

Judge:  Master Harper
Date:  28 September 2012
Place:  Canberra

THE COURT ORDERS THAT:

The defendants’ costs of their application in proceeding dated 18 July 2012 be paid by the plaintiffs.

The defendants’ costs of the application by the plaintiffs for extension of time under the Administrative Decisions (Judicial Review) Act 1989 be paid by the plaintiffs.

The statement of claim filed by the plaintiffs on 7 September 2012 be struck out.

The plaintiffs have leave to file and serve an amended statement of claim by 19 October 2012.

The defendants have liberty to apply on three days’ notice in relation to the amended statement of claim.

The application in proceeding by the defendants dated 28 August 2012 be dismissed with costs.

The defendants’ application in proceeding dated 18 September 2012 be dismissed with costs.

On 10 August 2012 I published reasons for making a number of interlocutory orders in this action. I need not repeat the summary there set out of the basis of the claim by the plaintiffs. I ordered, inter alia, that the action continue as if it had been commenced by originating claim, and that the plaintiffs file and serve a statement of claim. They did so on 7 September 2012.
I made no order at that time as to costs and said that I would hear submissions from the parties before doing so.
On 29 August the solicitors for the defendant filed an application in proceeding seeking orders that the plaintiffs pay the defendants’ costs of the proceeding on an indemnity basis, and a further order that the plaintiffs pay the defendants’ costs of the interlocutory application. This application in proceeding was made returnable for 14 September. When publishing my reasons I had already directed that the matter be listed for further directions on that date. It was accordingly…

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 [2012] ACTSC 150
Case: [2012] ACTSC 150
Decision Date: 28 September 2012

CaseChat Overview and Summary

The case of Brennand v Hartung involved parents who brought a claim against a school and its principal, alleging breaches of contract, negligence, and defamation in relation to the enrolment of their child at the school. The dispute centered around the processes and decisions that led to the child's enrolment being cancelled. The matter was heard in the Supreme Court of New South Wales. The defendants sought to have the plaintiffs' Statement of Claim struck out due to perceived defects, and also applied for summary judgment, arguing that the claims had no reasonable prospect of success. Additionally, the plaintiffs requested an opportunity to amend their pleadings.

The legal issues before the court involved the adequacy of the plaintiffs' Statement of Claim and whether it disclosed a reasonable cause of action. The court had to determine if the plaintiffs' claims, as pleaded, were sufficient to warrant a trial, and if the defects in the pleadings were such that they could not be rectified by amendment. The court also needed to consider the defendants' application for summary judgment, assessing whether the claims presented by the plaintiffs could succeed on the evidence available at that stage.

In addressing these issues, the court found that while there were indeed defects in the plaintiffs' Statement of Claim, these defects could be remedied by an amendment. Consequently, the court granted the plaintiffs leave to file an amended Statement of Claim. Regarding the application for summary judgment, the court determined that the plaintiffs' claims had a reasonable prospect of success and thus denied the application. The court also made consequential orders regarding the costs of the defendants' application, ruling that these costs were to be borne by the plaintiffs.

The final orders of the court included the allowance for the plaintiffs to file an amended Statement of Claim, the refusal of the defendants' application for summary judgment, and the direction that the defendants' costs of their application dated 18 July 2012 were to be paid by the plaintiffs. This decision ensured that the plaintiffs had the opportunity to correct the deficiencies in their initial pleadings while preventing the defendants from prematurely dismissing the claims through summary judgment.

Orders

Orders of the court

The defendants’ costs of their application in proceeding dated 18 July 2012 be paid by the plaintiffs.

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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