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Croney v Nand

Croney v Nand

Case [1998] QCA 367 13 November 1998

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IN THE COURT OF APPEAL	[1998] QCA 367
SUPREME COURT OF QUEENSLAND

Appeal No. 7315 of 1998

Brisbane

[Nand v. Croney]

BETWEEN:

JOSEPH NAND

(Defendant) Applicant

AND:

JASON JOHN CRONEY

(Plaintiff) Respondent
McPherson J.A.
Pincus J.A.
Jones J.

Judgment delivered 13 November 1998

Judgment of the Court

1.          APPLICATION FOR LEAVE TO ADDUCE FURTHER EVIDENCE MADE ON THE NOTICE OF MOTION DATED 28 AUGUST 1998 REFUSED.
2.          EXECUTION OF THE JUDGMENT MENTIONED IN THE NOTICE OF MOTION AGAINST THE DEFENDANT’S INTEREST IN A HOUSE AND LAND AT 2 PHILLIP PLACE, FOREST LAKE, STAYED UNTIL DETERMINATION OF APPEAL NO. 7315 OF 1998 OR FURTHER ORDER.
3.          COSTS OF AND INCIDENTAL TO THE NOTICE OF MOTION TO BE COSTS IN THE APPEAL.

CATCHWORDS:	EMPLOYMENT LAW - Injury of employee - Liability of employer - Respondent injured in course of employment - Whether applicant was employer at relevant time - Whether to grant leave to adduce fresh evidence on appeal - Whether by reasonable diligence could have obtained evidence by trial - Whether evidence would have had important influence on result of case - Whether to stay execution of judgment.
Supreme Court Rules O.70, rr.10, 28; Workers Compensation Act 1990 ss.50, 183(1), 551; Brisbane City Council v. Mainsel Investments Pty. Ltd. [1989] 2 Qd.R. 204; Landgale v. Danby [1982] 3 All E.R. 129; Wilson v. Austral Motors (Qld) Pty. Ltd. [1983[ 2 Qd.R. 774; Alexander v. Cambridge Credit Corporation Ltd. [1985] 2 N.S.W.L.R. 685
Counsel:	Mr M.J. Byrne for the applicant Mr P.J. Davis for the respondent
Solicitors:	A. Ahmed & Co. for the applicant A.P. Hodgson & Associates for the respondent
Hearing Date:	5October1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7315 of 1998

Brisbane

Before

McPherson J.A.
Pincus J.A.
Jones J.

[Nand v. Croney]

BETWEEN:

JOSEPH NAND

(Defendant) Applicant

AND:

JASON JOHN CRONEY

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13 November 1998

On 15 March 1991 the respondent/plaintiff (hereinafter “the plaintiff”) was injured in
the course of his employment. On 10 July 1998 in an action in the District Court at Brisbane
he was awarded damages and interest totalling $102,865 for those injuries.
The applicant/defendant (hereinafter “the defendant”) has appealed against that decision
on the grounds that the finding that he was at the relevant time the employer of the plaintiff was
incorrect. He seeks by this application firstly, a stay of execution of the judgment and secondly,
leave to adduce further evidence on the hearing of the appeal.
The plaintiff alleged that the defendant was, at the relevant time, his employer and the
owner of a tree lopping business trading as “Neil's Tree Lopping Service”. The defendant
alleged that though he was at one time the plaintiff's employer, he had in January 1991 sold the
business to one Raj Kumar (hereinafter “Kumar”). Kumar was not made a party to the action.
The learned trial judge in closely detailed reasons, found on balance of…

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 Croney v Nand

Details

AGLC: Croney v Nand [1998] QCA 367
Case: [1998] QCA 367
Decision Date: 13/11/1998

CaseChat Overview and Summary

The case before the court involved Croney, the appellant, and Nand, the respondent, who was an employee injured in the course of employment. The primary dispute centred on the liability of the employer, Croney, in relation to the respondent's injury. The matter was heard in the Supreme Court of Victoria, Court of Appeal. The appeal sought to challenge the original judgment that held Croney liable for the respondent's injury, questioning the employer's status at the relevant time and the validity of the evidence presented during the trial.

The legal issues before the court encompassed the determination of whether Croney was indeed the employer of Nand at the time of the injury, the admissibility of fresh evidence on appeal, and the assessment of whether such evidence, if admitted, would have had a significant impact on the outcome of the case. Additionally, the court was tasked with deciding whether Croney could have reasonably obtained the evidence in question before the trial and whether it would have substantially influenced the result. Furthermore, the court considered whether the execution of the judgment should be stayed pending the outcome of the appeal.

The court found that Croney was indeed the employer of Nand at the relevant time and that the fresh evidence did not meet the stringent criteria required for admissibility on appeal. The evidence was deemed insufficient to have a material impact on the result, and the appeal was dismissed. Consequently, the execution of the judgment was not stayed, affirming the original decision that held Croney liable for the respondent's injury.

Orders