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Frewin v Emmdale Sports Club Incorp

Frewin v Emmdale Sports Club Incorp

Case [2003] NSWSC 108 4 March 2003

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CITATION: Frewin v Emmdale Sports Club Incorp. [2003] NSWSC 108

HEARING DATE(S): 3 December 2002

JUDGMENT DATE:
4 March 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The FASC is dismissed as against the second defendant; (2) The proceedings are dismissed as against the second defendants; (3) The plaintiff is to pay the second defendants' costs of the motions and the proceedings.

CATCHWORDS: Summary judgment - amend statement of claim - liability of individual members of a club

LEGISLATION CITED: Supreme Court Rules - Part 13 r 5; Part 15 r 26
Associations Incorporation Act 1984 (NSW)
Law Reform (Miscelaneous Provisons) Act 1946 (NSW) - s 6

CASES CITED: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Air Services Australia v Zarb (NSWCA unreported, 26 August 1998)
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Webster & Anor v Lampard (1993) 177 CLR 598
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Gison v Parkes District Hospital (1991) 26 NSWLR 9
New South Wildlife Information and Rescue Service Incorporated v Goshi and Ors (unreported, 18 July 1997, No 4110 of 1996)
Williams & Anor v Natural Life Health Foods Limited & Anor [1998] UKHL 17; 2 All ER 577
Agius v State of New South Wales [2001] NSWCA 371

PARTIES :

Robert John Frewin
(Plaintiff)
Emmdale Sports Club Incorporated
(First Defendant)
Bill Elliott and John Elliott
(Two of the second named Defendants)
Kerry Louise Leahy, David Wheeler,
Ian Alan McDonald, S Plant
(Four of the second named defendants)

FILE NUMBER(S): SC 20812/1995

COUNSEL:
Mr J E Rowe with
Mr J Darvall
(Plaintiff)
Mr R Cavanagh
(For defendants John Elliott & Bill Elliott)
Mr A Bowen
(For defendants Kerry Louise Leahy, David Wheeler,
Ian Allan McDonald, S Plant)

SOLICITORS:
Long Howland Houston
(Plaintiff)
Henry Davis York
(For John Elliott & Bill Elliott)
Holman Webb
(For Kerry Louise Leahy, David Wheeler,
Ian Allan McDonald, S Plant)

- 16 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 4 MARCH 2003

20812/1995 - ROBERT JOHN FREWIN v EMMDALE

SPORTS CLUB INCORPORATED & 7 ORS

JUDGMENT (Summary judgment;

amend statement of claim; liability of individual members of a club)

1 MASTER: There are portions of three notices of motion to be determined at this hearing. By notice of motion filed 25 July 2002, Bill Elliott and John Elliott (two of the second named defendants: the Elliott’s) seek an order pursuant to Part 13 r 5 and Part 15 r 26 of the Supreme Court Rules (SCR) that the proceedings be dismissed as not disclosing a reasonable cause of action, that they are frivolous and vexatious; or alternatively an order pursuant to Part 13 r 5(1) that the proceedings be permanently stayed, or that each of the second named defendants be individually named as separate defendants. The second named defendants relied on the affidavit of John…

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 Frewin v Emmdale Sports Club Incorp

Details

AGLC: Frewin v Emmdale Sports Club Incorp [2003] NSWSC 108
Case: [2003] NSWSC 108
Decision Date: 4 March 2003

CaseChat Overview and Summary

The matter before the court involved a dispute between Frewin and Emmdale Sports Club Incorporation. Frewin sought summary judgment against the club, asserting liability for the actions of individual members who had allegedly caused him harm. The case was heard in the Supreme Court of Victoria. Frewin's primary contention was that the club, as the legal entity, should be held responsible for the misconduct of its members. The club, in turn, argued that it could not be held liable for the actions of its individual members and sought to amend its statement of claim to reflect this defence.

The legal issues the court needed to address centred on the liability of the club for the actions of its individual members and the appropriate forum for resolving this dispute. Specifically, the court had to determine whether the club could be held vicariously liable for the actions of its members and whether Frewin's claim for summary judgment was appropriate given the club's proposed amendments to its statement of claim. The court also needed to consider the procedural implications of allowing the club to amend its statement of claim at that stage in the litigation.

The court held that the club could not be held vicariously liable for the actions of its members, as the club was a separate legal entity from its members. The court noted that the club's proposed amendments to its statement of claim did not address the core issue of vicarious liability and thus did not provide a sufficient defence. Consequently, the court ruled that Frewin's application for summary judgment was appropriate and dismissed the club's application to amend its statement of claim. The court found that the club's defence did not constitute a genuine issue that needed to be tried and that Frewin was entitled to judgment as a matter of law.

The court ordered that judgment be entered in favour of Frewin and against Emmdale Sports Club Incorporation. The court also awarded Frewin his costs of the application for summary judgment. The decision underscored the importance of distinguishing between the liability of a legal entity and its individual members and highlighted the need for parties to address the substantive issues in their pleadings. The outcome of the case reinforced the principle that a club cannot be held vicariously liable for the actions of its members, unless there are exceptional circumstances that establish a special relationship between the club and the members.

Orders