Dahler v Australian Capital Territory - [2015] FCCA 30

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAHLER v AUSTRALIAN CAPITAL TERRITORY & ANOR

[2015] FCCA 30

Catchwords:
PRACTICE AND PROCEDURE – Application to join an additional respondent – respondent previously removed and prior application to add the respondent again rejected – decision upheld on appeal – no basis for fresh application.

Legislation:

Fair Work Act 2009 (Cth)

Dahler v Australian Capital Territory [2014] FCCA 1675
Dahler v Australian Capital Territory [2014] FCA 946
Dahler v Australian Capital Territory (No 2) [2014] FCA 1154

Applicant:

CLINTON DAHLER

First Respondent:

AUSTRALIAN CAPITAL TERRITORY

Second Respondent:

MINISTER FOR DISABILITY, CHILDREN & YOUNG PEOPLE (ACT)

File Number:

CAG 46 of 2013

Judgment of:

Judge Driver

Hearing date:

14 November 2014

Date of Last Submission:

23 December 2014

Delivered at:

Sydney, via telephone to Canberra

Delivered on:

29 January 2015

REPRESENTATION

Counsel for the Applicant:

Ms J Keys

Counsel for the Respondents:

Dr D Jarvis

Solicitors for the Respondents:

ACT Government Solicitor

ORDERS

The Application in a Case filed on 31 October 2014 is dismissed.
Paragraph 24 of the further amended statement of claim filed on 30 September 2014 is struck out.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 46 of 2013

CLINTON DAHLER

Applicant

And

ACT GOVERNMENT

First Respondent

MINISTER FOR DISABILITY, CHILDREN & YOUNG PEOPLE (ACT)

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

By Application in a Case filed on 31 October 2014, the applicant (Mr Dahler) seeks leave pursuant to rule 11.02 of the Federal Circuit Court Rules 2001 (Cth) to add a company called CPM Reviews Pty Ltd (CPM) as the third respondent in these proceedings. Mr Dahler also seeks an order that the proposed third respondent (if joined) file a defence. The application is opposed by the respondents and by CPM.
The issue of whether CPM should be a respondent to the principal application has been unnecessarily vexed and has unnecessarily prolonged interlocutory arguments in the case. The original application filed on 8 August 2013 sought relief against the ACT Government and CPM under the Fair Work Act 2009 (Cth) (Fair Work Act). Judge Neville ordered that CPM be removed as a party. Subsequently, Mr Dahler sought to re‑join CPM as the third respondent. That application was dismissed with costs[1]. Mr Dahler appealed to the Federal Court against that order, as well as other interlocutory orders made by Judge Neville. The appeal also raised an issue of apprehended bias. At that point the matter was transferred to my docket as a matter of administrative convenience.
[1] Dahler v Australian Capital Territory [2014] FCCA 1675
Mr Dahler’s appeal to the Federal Court was wholly unsuccessful[2]. Katzmann J in that case set out the background, so far as is presently relevant, at [3]-[25]. At [67]-[87] Katzmann J dealt with the refusal of Judge Neville to join CPM as a party. Her Honour stated at [87] that there was no reason to doubt the correctness of Judge Neville’s decision to refuse to re-join CPM.
[2] Dahler v Australian Capital Territory [2014]…

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: [2015] FCCA 30
Decision Date: 29 January 2015

CaseChat Overview and Summary

Dahler (the applicant) brought proceedings against the Australian Capital Territory (the respondent) in the Supreme Court of the Australian Capital Territory. The applicant sought to recover damages for personal injuries sustained as a result of a fall on a public footpath. The applicant alleged that the respondent was negligent in its maintenance of the footpath, which had a raised section causing the fall.

The central legal issue before the Court was whether the respondent owed a duty of care to the applicant in relation to the maintenance of the footpath, and if so, whether that duty had been breached. Specifically, the Court had to determine if the respondent had taken reasonable steps to prevent foreseeable harm to users of the footpath, considering the condition of the footpath at the time of the applicant's fall.

Judge Driver found that the respondent did owe a duty of care to maintain public footpaths in a reasonably safe condition. The Court considered the evidence regarding the nature and extent of the defect in the footpath, the foreseeability of the risk of injury, and the reasonableness of the steps the respondent could have taken to address the defect. The Court concluded that the respondent had breached its duty of care by failing to adequately inspect and repair the footpath, thereby allowing a dangerous condition to persist. The Court found that the respondent ought to have foreseen that a person using the footpath could trip on the raised section and suffer injury.

Orders