Burke v Ash Sounds Pty Ltd - [2018] VSC 771

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2017 00891

MICHELA JOY BURKE	Plaintiff
v
ASH SOUNDS PTY LTD TRADING AS THE FALLS MUSIC AND ARTS FESTIVAL (ABN 67 160 019 152)	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2018
DATE OF JUDGMENT:	12 December 2018
CASE MAY BE CITED AS:	Burke v Ash Sounds Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 771

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DAMAGES – Claim for damages for non-economic loss for injuries caused by defendant’s negligence – Claim for damages for non-economic loss for breach of ss 61(1) and 61(2) of the Australian Consumer Law – Whether damages claim for breach of ss 61(1) and 61(2) of the Australian Consumer Law subject to s 28LE of the Wrongs Act 1958 – Commonwealth Constitution s 109 – Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Schedule 2) ss 61(1), 61(2), 267(4), 275 – Wrongs Act 1958 ss 28LB, 28LC, 28LE, 28LF.

PRACTICE AND PROCEDURE – Application for determination of separate question – Material facts necessary to provide foundation of separate question not pleaded in statement of claim – Separate question did not arise in proceeding – Supreme Court (General Civil Procedure) Rules 2015 r 47.04.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr T Tobin SC with Mr M Guo	Maddens Lawyers
For the defendant	Mr J Gleeson QC with Mr M Hooper	Lander & Rogers

HIS HONOUR:

The current proceeding is a group proceeding commenced by writ filed on 15 March 2017. The statement of claim annexed to the writ claims damages in respect of a large number of persons who were injured on the evening of 30 December 2016 while attending the Falls Music and Arts Festival at Lorne. The injuries were allegedly suffered when people at the festival were attempting to exit ‘the Grand Theatre’, one of the venues at which patrons listened to music.

In her statement of claim, the plaintiff alleges that she suffered injury, loss and damage by reason of the defendant’s breach of duty, which was owed pursuant to contract, s 14B(3) of the Wrongs Act 1958 (‘Wrongs Act’) and at common law (‘breach of duty claims’). By a second amended statement of claim dated 25 October 2018, in addition to the breach of duty claims, the plaintiff claims damages for alleged breach of the guarantees prescribed by s 60 (services will be rendered with due care and skill) and s 61 (services will be fit for purpose/will achieve desired results) of ‘Schedule 2 — The Australian Consumer Law’ to the Competition and Consumer Act 2010 (Cth) (‘ACL’).

In its amended defence dated 15 November 2018, the defendant admits the breach of duty claims and the breaches of ss 60 and 61 of the ACL. The defendant admits the plaintiff suffered injury, loss and damage by reason of its conduct, but does not admit the extent of such injury,…

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 Burke v Ash Sounds Pty Ltd

Details

AGLC: Burke v Ash Sounds Pty Ltd [2018] VSC 771
Case: [2018] VSC 771
Decision Date: 12 December 2018

CaseChat Overview and Summary

Burke brought an action against Ash Sounds Pty Ltd for damages for non-economic loss following injuries caused by the defendant's negligence. The plaintiff also claimed damages for breach of sections 61(1) and 61(2) of the Australian Consumer Law. The case came before the court on the defendant's application to determine whether the damages claim for breach of the Australian Consumer Law was subject to section 28LE of the Wrongs Act 1958. The court was required to decide if section 28LE applied to the plaintiff's claim for non-economic loss for breach of the Australian Consumer Law and, if so, whether the application was made in accordance with rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2015.

The court found that the material facts necessary to provide the foundation of the separate question had not been pleaded in the statement of claim. Additionally, the court held that the separate question did not arise in the proceeding as it was not necessary for the determination of the substantive cause of action. The court noted that section 28LE of the Wrongs Act 1958, which provides for the recovery of damages for non-economic loss in tort actions, was not applicable to the plaintiff's claim for breach of the Australian Consumer Law. The court concluded that the application for determination of the separate question was not permissible under rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2015.

The court dismissed the defendant's application and ordered the defendant to pay the plaintiff's costs of the application.

Orders