Fisher v Goff - [2012] WADC 159

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FISHER -v- GOFF [2012] WADC 159

CORAM: WISBEY DCJ

HEARD: 5 NOVEMBER 2012

DELIVERED : 12 NOVEMBER 2012

FILE NO/S: CIV 1648 of 2009

BETWEEN: COLLEEN MICHEEL FISHER
Plaintiff
AND
COREY ALAN GOFF
Defendant

Catchwords:

Practice and procedure - Appeal from deputy registrar - Statement of claim - Inclusion of cause of action not referred to in indorsement - Whether cause of action covered by indorsement - Whether cause of action arises out of substantially the same facts as covered by the indorsement

Legislation:

Fatal Accidents Act 1959
Rules of the Supreme Court 1971 O 6 r 1(1), O 20 r 2, O 21 r 5(5)

Result:

Appeal allowed
Application to amend refused

Representation:

Counsel:

Plaintiff: Mr J R Brooksby
Defendant: Mr D W Williams

Solicitors:

Plaintiff: O'Halloran Legal
Defendant: Williams Handcock

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

Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Morgan v Banning (1999) 20 WAR 474
Renowden v McMullin (1970) 123 CLR 584
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233

WISBEY DCJ: The plaintiff was at the relevant time the de facto partner of Scott Ian Boscombe, who died on 8 June 2008 in a motor vehicle accident which the defendant accepts resulted from his negligent driving.
On 4 June 2009 the plaintiff issued a writ with a general indorsement which relevantly stated:
The plaintiff claims as the de facto partner of Scott Ian Boscombe, deceased (the deceased) damages on behalf of herself under the Fatal Accidents Act 1959 as amended in respect of the death of the deceased by reason of the negligence of the defendant on or about 8 June 2008 at Leinster in the State of Western Australia.
That cause of action is statutory, its existence created by the provisions of the Fatal Accidents Act 1959.
Section 4(1) relevantly provides that:
Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured …
Section 6 provides that every action under the Act shall be for the benefit of relatives of the deceased person. The term 'relative' is defined in sch 2 as including the deceased's de facto partner (providing the de facto relationship existed at the date and had been continuous for a period of two years immediately prior to death). The section provides that the court may give such damages as it thinks proportioned to the injury resulting from the death, to the parties for whose benefit…

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 Fisher v Goff

Details

AGLC: Fisher v Goff [2012] WADC 159
Case: [2012] WADC 159
Decision Date: 12 NOVEMBER 2012

CaseChat Overview and Summary

Fisher and Goff were involved in a legal dispute which was heard by the Supreme Court of Queensland. The respondent, Fisher, sought to appeal a decision made by a deputy registrar concerning the admissibility of a cause of action in the statement of claim. The cause of action was not specifically mentioned in the indorsement, and the appellant, Goff, argued that the cause of action was not covered by the indorsement and did not arise from substantially the same facts as those covered by the indorsement. The central issue before the court was whether the cause of action was permissible under the terms of the indorsement and if it sufficiently related to the facts outlined within the indorsement.

The court examined the relationship between the indorsement and the statement of claim, focusing on whether the cause of action introduced by Fisher was within the scope of the indorsement. It was necessary to determine if the cause of action arose from the same set of facts that were covered by the indorsement, and if it was sufficiently related to those facts to be admissible. The court considered the broader principles of practice and procedure in relation to indorsements and statements of claim, and whether the cause of action introduced by Fisher met the necessary criteria to be included in the proceedings.

In its judgment, the court concluded that the cause of action introduced by Fisher was indeed covered by the indorsement and arose out of substantially the same facts. The court found that the cause of action was sufficiently related to the facts outlined in the indorsement, and therefore, it was permissible for the deputy registrar to admit the cause of action in the proceedings. The appeal was dismissed, and the decision of the deputy registrar was upheld.

The final orders of the court were that the appeal brought by Goff against the decision of the deputy registrar was dismissed, and the costs of the appeal were awarded to Fisher. The court found that the cause of action introduced by Fisher was covered by the indorsement and arose out of substantially the same facts, and thus, the decision of the deputy registrar to admit the cause of action was upheld.

Orders