Cortese v Avanova Pty Ltd - [2022] WADC 34

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CORTESE -v- AVANOVA PTY LTD [2022] WADC 34
CORAM:   REGISTRAR HOGAN
HEARD:   23 MARCH 2022
DELIVERED          :   13 APRIL 2022
FILE NO/S:   CIV 2321 of 2021
BETWEEN:   CHELSEA ROSE CORTESE
Plaintiff
AND
AVANOVA PTY LTD
First Defendant
HORIZONTAL FALLS PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Discovery - Further and better particulars of defence - Strike out parts of statement of claim - Springing order - Turns on own facts

Legislation:

District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Discovery application dismissed
Application for further and better particulars of defence dismissed
Application to strike out parts of statement of claim and for a springing order - partially successful

Representation:

Counsel:

Plaintiff	:	Mr N F Morrissey
First Defendant	:	Ms J L W Henderson and Mr G B Rogers
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Maureen O'Connell
First Defendant	:	Jackson McDonald
Second Defendant	:	Not applicable

Case(s) referred to in decision(s):

MTQ Holdings Pty Ltd v Lynch [No 3] [2007] WASC 49

REGISTRAR HOGAN:

The plaintiff filed a writ and statement of claim (SOC) on 29 June 2021 claiming damages for personal injuries sustained whilst a passenger in a helicopter owned by Avanova Pty Ltd.
The writ initially named two defendants, Avanova Pty Ltd and Horizontal Falls Pty Ltd. The action against Horizontal Falls Pty Ltd was dismissed by consent on 23 November 2021.

Plaintiff's claim

Essentially the plaintiff pleads that:
(a)she suffered injury whilst a passenger in a helicopter owned by the defendant;
(b)the helicopter was situated on top of High Calibre, a boat owned by the pilot;
(c)as the helicopter began to take off a holding strap was still attached on the underside of the helicopter which pulled the helicopter down and as the helicopter was manoeuvred to the right it began to tilt and sliced the right‑hand side of High Calibre, shattering the glass windows before nose‑diving into the water; and
(d)the defendant was negligent in attempting to take off and climb the helicopter while it was still strapped to High Calibre causing a loss of control and the defendant failed to perform adequate pre‑flight checks to ensure that the helicopter was not strapped to High Calibre before taking off and failed to exercise sufficient care and skill in the operation of the helicopter to prevent the accident.

The applications

Chambers applications have been filed on 11 January 2022, 24 January 2022, and 3 February 2022.

Chamber summons dated 11 January 2022

By an application dated 11 January 2022 (Discovery Application) the plaintiff sought orders that:
1.The time for hearing of Chamber Summons be abridged.
2.The First Defendant file and serve upon the Plaintiff, its Affidavit of Discovery within 14 days from the date of this Order.
3.The First Defendant provide copies of the documents contained in the Affidavit of Discovery, to the Plaintiff, within 14 days from the date of this Order.
4.The…

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.

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Details

Case: [2022] WADC 34
Decision Date

CaseChat Overview and Summary

The District Court of Western Australia heard a dispute between Chelsea Rose Cortese, the plaintiff, and Avanova Pty Ltd, the first defendant, concerning a personal injury claim that arose from an incident where the plaintiff was a passenger in a helicopter owned by the defendant. The plaintiff sought damages for injuries sustained when the helicopter, which was situated on top of a boat, began to take off with a holding strap still attached to the underside, causing the helicopter to lose control and crash into the water. The second defendant, Horizontal Falls Pty Ltd, was dismissed by consent prior to the hearing. The legal issues in the case involved the plaintiff's discovery application, the defendant's application for further and better particulars of the defence, and the defendant's application to strike out parts of the statement of claim and for a springing order.

The court considered the defendant's delay in providing discovery and bringing its strike-out application, but ultimately found that the defendant was not unreasonable in doing so, given the ongoing negotiations between the parties and the filing of consent orders extending the time for filing the defence and strike-out application. The court granted leave for the strike-out application but found that it was no longer necessary to decide the application as the plaintiff had filed an amended statement of claim. However, the court noted that the defendant would have been successful in the strike-out application if it were still necessary to decide. Regarding the plaintiff's application for further and better particulars of the defence, the court found that the plaintiff had been frustrated in progressing the claim due to the defendant's delay in providing discovery and bringing the strike-out application. However, the court dismissed the plaintiff's application for further and better particulars as the defendant's denial of owing a duty of care was deemed too general for the plaintiff to respond to. Finally, the court dismissed the plaintiff's discovery application as the defendant had conceded it could now provide discovery, and the court found that it was not unreasonable for the defendant to have delayed the provision of discovery.

The court did not make a springing order against the plaintiff as it did not consider it to be in the interests of justice to do so, given that the plaintiff was not in clear breach of an order of the court and the delays were not extreme. The court also dismissed the defendant's application to strike out parts of the plaintiff's statement of claim and for a springing order as it was no longer necessary to decide the application due to the filing of the amended statement of claim.

Orders