Bresmac Pty Ltd v Starr

Case [2010] NSWCA 279



New South Wales


Court of Appeal


CITATION: Australian Native Landscapes Pty Ltd v Minogue [2010] NSWCA 279
HEARING DATE(S): 11 October 2010
 
JUDGMENT DATE: 

29 October 2010
JUDGMENT OF: Allsop P at 1; Beazley JA at 2; McColl JA at 3
DECISION: Appeal dismissed with costs.
CATCHWORDS: TORTS – damages – contribution between tortfeasors – s 5(1)(c), Law Reform (Miscellaneous Provisions) Act 1946 – where plaintiff’s damages already reduced by determination of co-tortfeasor’s notional liability under s151Z(2), Workers Compensation Act 1987 - - APPEAL – general principles – point not taken at hearing – not permitted to be raised on appeal
LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Workers Compensation Act 1987 (NSW)
CASES CITED: Clout Industrial Pty Ltd (in Liq) v Baiada Poultry Pty Ltd [2004] NSWCA 89; (2004) 61 NSWLR 111
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Dokoza v Stadkite Pty Ltd (1997) 42 NSWLR 544
Forstaff Blacktown Pty Ltd v Brimac Pty Ltd; Brimac Pty Ltd v Johnston [2005] NSWCA 423; (2005) Aust Torts Reports 81-814
Grljak v Trivan Pty Ltd (In Liq) (1994) 35 NSWLR 82
Hayes v Nominal Defendant (District Court of New South Wales, 11 April 2008, unreported)
James Hardie & Co v Seltsam Pty Ltd [1998] HCA 78; (2008) 196 CLR 53
Leonard v Smith (1992) 27 NSWLR 5
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
PARTIES: Australian Native Landscapes Pty Ltd - Appellant
Bernie Minogue - first Respondent
Australian Native Landscapes (Admin) Pty Ltd - second Respondent
FILE NUMBER(S): CA 2009/325388
COUNSEL: KW Andrews - for the Appellant
JE Sexton SC with DP Kelly - for the Respondents
SOLICITORS: David Veasey - for the Appellant
Moray & Agnew - for the Respondents
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 2006/84
LOWER COURT JUDICIAL OFFICER: Charteris DCJ
LOWER COURT DATE OF DECISION: 18 December 2009





                          2009/325388

                          ALLSOP P
                          BEAZLEY JA
                          McCOLL JA

                          Friday 29 October 2010
Australian Native Landscapes Pty Ltd v Minogue

Judgment


1 ALLSOP P: For the reasons given by McColl JA, whose judgment I have had the advantage of reading, the appellant should not be allowed to approach this appeal in the different manner that is attempted to be done. For this reason, as explicated by McColl JA, the appeal should be dismissed with costs. I would only wish to add that the lack of raising the issue (with any adequate clarity) as was sought to be agitated on appeal can be seen by its absence from the otherwise comprehensive reasons of the learned primary judge.

2 BEAZLEY JA: I agree with McColl JA.

3 McCOLL JA: Matthew Hayes, the plaintiff, was injured on 9 January 2004 when he was struck by a large set of metal grabs…

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AGLC
Bresmac Pty Ltd v Starr [2010] NSWCA 279
Case
[2010] NSWCA 279
Decision Date

CaseChat Overview and Summary

Bresmac Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales concerning contribution between tortfeasors. The dispute arose from a claim by a plaintiff who had suffered injuries, for which Bresmac and another party were found to be concurrently liable. The plaintiff's damages had already been reduced by the notional liability of a co-tortfeasor under section 151Z(2) of the *Workers Compensation Act 1987* (NSW). Bresmac sought to argue on appeal that this reduction should not have been applied in the assessment of contribution between tortfeasors.

The primary legal issue before the Court of Appeal was whether the reduction in the plaintiff's damages, made pursuant to section 151Z(2) of the *Workers Compensation Act 1987* (NSW), should be taken into account when determining the extent of contribution recoverable between concurrent tortfeasors under section 5(1)(c) of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW). A secondary issue, which arose during the appeal, concerned whether a point not taken at the original hearing could be raised on appeal.

The Court of Appeal dismissed the appeal, holding that the point Bresmac sought to raise on appeal had not been taken in the court below and therefore could not be raised on appeal. The Court affirmed the general principle that points not taken at the hearing are not permitted to be raised on appeal, particularly where doing so would involve a re-litigation of the factual matrix or introduce new arguments that were not considered by the trial judge. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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