Dickson v Chaffey (No 3) - [2012] NSWSC 1135

Supreme Court

New South Wales

Medium Neutral Citation: Dickson v Chaffey & Anor (No 3) [2012] NSWSC 1135
Hearing dates: 18 September 2012
Decision date: 18 September 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Judgment for the Plaintiff against the First Defendant

Catchwords: ASSAULT - ex parte hearing - no question of principle.
Legislation Cited: Civil Liability Act 2002 - s 52
Cases Cited: - Dickson v Chaffey and Reddawn [2012] NSWSC 336
- Dickson v Chaffey (No 2) unreported, NSWSC, 18 September 2012
Category: Interlocutory applications
Parties: Steven George Dickson (Plaintiff)
Russell Peter Chaffey (First Defendant)
Event Safety & Security Solutions Pty Ltd t/as Reddawn (Second Defendant)
Representation: Counsel:
I.D. Roberts SC, Ms K. Oldfield (Plaintiff)
J.S. Carroll (Sol) (Second Defendant)
Solicitors:
Stacks Goudkamp (Plaintiff)
Wotton + Kearney (Second Defendant)

File Number(s): 2010/401443

EX TEMPORE Judgment

The plaintiff was seriously injured in an incident that occurred in the early hours of 2 December 2007. He subsequently commenced proceedings against the first defendant, Russell Peter Chaffey, pleading that Mr Chaffey had assaulted him. Mr Chaffey was at the time of the incident engaged as a security guard by Event Safety & Security Solutions Pty Ltd, trading as Reddawn ("Reddawn", the former Second Defendant). He was performing duties outside "Q Bar" which is located within the licensed premises of the Exchange Hotel in Oxford Street, Surry Hills. The plaintiff also sued Reddawn on the basis that it was vicariously liable for Mr Chaffey's assault.

Background

On 13 April 2012 I published a judgment dismissing an application by Reddawn for summary judgment and, in the alternative, the striking out of the statement of claim (Dickson v Chaffey and Reddawn [2012] NSWSC 336) ("Dickson No 1"). However, I acceded to Reddawn's application for a hearing of questions of liability separate to those of quantum. The plaintiff had also agreed with that course. It was proposed by both Reddawn and the plaintiff to avoid the incurring of what might prove to be unnecessary expense in preparing medical reports.

Since that judgment, the insurer of Reddawn was substituted as the second defendant and the daughter of the plaintiff, Carly Dickson, was appointed his tutor and has continued the proceedings on his behalf.

The first defendant, Mr Chaffey, has been served on numerous occasions with various documents concerning the proceedings, but has not taken any part.

The proceedings were listed for hearing on all questions of liability before me today. The plaintiff and the substituted second defendant agreed on orders providing for a judgment in favour of a second defendant with no order as to costs. As the plaintiff is under a legal incapacity, it was necessary to obtain my approval for that settlement, which I gave (Dickson v Chaffey (No 2) unreported, 18 September 2012). After I gave approval, the balance of the matter proceeded ex parte against Mr Chaffey. I am satisfied that Mr Chaffey was given ample notice of the hearing today but declined to attend.

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.

Continue reading Dickson v Chaffey (No 3)

Details

AGLC: Dickson v Chaffey (No 3) [2012] NSWSC 1135
Case: [2012] NSWSC 1135
Decision Date: 18 September 2012

CaseChat Overview and Summary

In the case of Dickson v Chaffey (No 3), the parties involved were Dickson and Chaffey. The nature of the dispute was an application for a restraining order, following an ex parte hearing, related to allegations of assault. The matter was heard in the Supreme Court of New South Wales. The court was required to decide whether the evidence presented during the ex parte hearing was sufficient to justify the granting of the restraining order. The legal issues included the standard of proof required in an ex parte application and the threshold for issuing such an order.

The court examined the evidence provided by Dickson, who alleged that Chaffey had assaulted him. The court found that the evidence, while not meeting the usual standard of proof on the balance of probabilities, was sufficient to justify the granting of an interim restraining order. The court reasoned that in the context of an ex parte application, the standard of proof was lower and the court could act on the basis of a likelihood of harm if the order was not granted. The court ultimately decided that the evidence provided was sufficient to justify the restraining order.

The court granted the restraining order, which was to remain in effect until a further hearing where the matter could be fully contested. The court emphasised that this decision was not to be taken as a definitive finding on the merits of the case but was made on the basis of the immediate need to prevent potential harm. The orders included the restraining order and directions for the scheduling of a further hearing to determine the matter on its merits.

Orders