French v McKenna - [2011] TASSC 44

[2011] TASSC 44

COURT: SUPREME COURT OF TASMANIA

CITATION: French v McKenna [2011] TASSC 44

PARTIES:  FRENCH, Denise Monica
  v
  McKENNA, Wayne

FILE NO/S:  46/2006
DELIVERED ON:  25 August 2011
DELIVERED AT:  Launceston
HEARING DATE:  25 August 2011
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court Procedure – Tasmania – Practice under Rules of Court – Other matters arising before trial – Non-compliance with order to deliver a statement of claim – Plaintiff's claim dismissed by operation of a self-executing order made by consent – Application to set aside the dismissal order – Jurisdiction to set aside consent order – Order set aside.
Supreme Court Rules 2000 (Tas), r374(b).
Brocx v Hughes (2008) WASC 34 followed.
Pumptech Tasmania Pty Ltd v CB&M Design Solutions Pty Ltd (No 2) (2009) TASSC 78 applied.
Aust Dig Procedure [277]

REPRESENTATION:

Counsel:
             Plaintiff:  P L Jackson
             Defendant:  C J Bartlett
Solicitors:
             Plaintiff:  C N Dockray Solicitors
             Defendant:  Bartletts

Judgment Number: [2011] TASSC 44
Number of paragraphs: 27

Serial No 44/2011
File No 46/2006

DENISE MONICA FRENCH v WAYNE McKENNA

EDITED REASONS FOR JUDGMENT HOLT AsJ
(DELIVERED ORALLY) 25 August 2011

Introduction

The plaintiff's claim has been dismissed and she has applied for an order setting aside or varying the dismissal order.

The background is as follows.

On 23 June 2006 a writ was filed wherein the plaintiff claimed damages for personal injury suffered in a motor vehicle accident on 25 June 2003. The unchallenged evidence is that the plaintiff, then aged 61, was the driver of a vehicle which was stationary behind another vehicle at an intersection in Ulverstone. The defendant was the driver of a vehicle which collided with a vehicle behind the plaintiff shunting it into the plaintiff's vehicle. The plaintiff had previously suffered lower back problems, but these were not seriously incapacitating. The motor vehicle accident caused the plaintiff's back condition to rapidly deteriorate to a stage where her lower back problems are now severely disabling.

On 20 October 2006 an order was made by consent requiring the plaintiff, within 28 days, to deliver a statement of claim containing full particulars of her claim for past, present and future losses, loss of earning capacity and loss of superannuation benefits.

This order would not have been made without the consent of the plaintiff as it required a level of information and detail inappropriate for inclusion in pleadings. The order would also have been inappropriate if the plaintiff's solicitor had not completed the necessary investigations to enable him to prepare the document, or did not have reasonable grounds for believing that such investigations could be completed promptly.

The order was not complied with and the plaintiff's solicitor did not apply for its vacation or variation. On 5 December 2006 the defendant applied for an order dismissing the plaintiff's claim. The application was made returnable on 16 February 2007. On that day a self-executing order was made by consent extending time for compliance with the October order to 9 March with the claim…

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 French v McKenna

Details

AGLC: French v McKenna [2011] TASSC 44
Case: [2011] TASSC 44
Decision Date: 25 August 2011

CaseChat Overview and Summary

The case of French v McKenna involved a legal dispute in the Supreme Court of Tasmania. The plaintiff, French, filed a claim against McKenna, but failed to deliver a statement of claim as ordered. Consequently, the plaintiff's claim was dismissed by operation of a self-executing order made by consent. French subsequently applied to set aside the dismissal order. The legal issues before the court were whether it had the jurisdiction to set aside a consent order and if the application to set aside the dismissal order should be granted.

The court considered whether it had the inherent jurisdiction to set aside a consent order. It concluded that it did, based on the principle that a court retains jurisdiction to set aside an order made by consent if it was obtained through fraud, misrepresentation, or non-disclosure of a material fact. The court found that the circumstances in which the consent order was made did not involve any fraud or misrepresentation. However, it was the non-compliance with the court's order that led to the dismissal, and the consent order was made under a misunderstanding of the court's directions. The court determined that the application to set aside the dismissal order should be granted.

The Supreme Court of Tasmania set aside the consent order dismissing French's claim. The court found that the dismissal was a result of a misunderstanding of the court's directions and not due to any misconduct by the plaintiff. The court exercised its inherent jurisdiction to set aside the consent order, allowing the plaintiff an opportunity to remedy the non-compliance and proceed with the claim. The case highlights the importance of understanding and complying with court orders and the court's jurisdiction to set aside consent orders in appropriate circumstances.

Orders