Gibson v Treacy - [2002] WADC 85

GIBSON -v- TREACY & ORS [2002] WADC 85

Last Update: 06/05/2002

GIBSON -v- TREACY & ORS [2002] WADC 85
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WADC 85
Case No:	CIV:1006/1999	Heard:	4 APRIL 2002
Coram:	REGISTRAR KINGSLEY	Delivered:	02/05/2002
Location:	PERTH	Supplementary Decision:
No of Pages:	8	Judgment Part:	1 of 1
Result:	Application allowed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DERICK JOHN GIBSON ANDREW TREACY GRAHAM McGREE AWP CONTRACTORS PTY LTD INSURANCE COMMISSION OF WESTERN AUSTRALIA SGIO INSURANCE LTD
Catchwords:	Practice application to strike statement of claim Joinder of parties Consequences of amendment and the time an amendment operates Workers' Compensation legislation
Legislation:	Interpretation Act 1984 Motor Vehicle (Third Party Insurance) Act 1943 Workers' Compensation and Rehabilitation Act 1981
Case References:	Baldry v Jackson [1976] 2 NSW LR 415 Ketteman v Hansel Properties Ltd [1987] AC 189 Musgrove v Minister for Transport [2000] WASCA 232 Sneade v Wotherton Barytes & Lead Mining Company Ltd [1904] 1 KB 295 Templeton v Hamersley Iron Pty Ltd [2001] WASCA 179 Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : GIBSON -v- TREACY & ORS [2002] WADC 85 CORAM : REGISTRAR KINGSLEY HEARD : 4 APRIL 2002 DELIVERED : 2 MAY 2002 FILE NO/S : CIV 1006 of 1999 BETWEEN : DERICK JOHN GIBSON

Plaintiff

AND

ANDREW TREACY

First Defendant

GRAHAM McGREE

Second Defendant

AWP CONTRACTORS PTY LTD

Third Defendant

INSURANCE COMMISSION OF WESTERN AUSTRALIA

First Third Party

SGIO INSURANCE LTD

Second Third Party

(Page 2)

Catchwords:

Practice - application to strike statement of claim - Joinder of parties - Consequences of amendment and the time an amendment operates - Workers' Compensation legislation

Legislation:

Interpretation Act 1984
Motor Vehicle (Third Party Insurance) Act 1943
Workers' Compensation and Rehabilitation Act 1981

Result:

Application allowed

Representation:

Counsel:

Plaintiff : Mr K Robson

First Defendant : Mr P Lansell

Second Defendant : No appearance

Third Defendant : Mr P Lansell

First Third Party : No appearance

Second Third Party : No appearance

Solicitors:

Plaintiff : Slee Anderson & Pidgeon

First Defendant : Jackson McDonald

Second Defendant : Talbot & Olivier

Third Defendant : Jackson McDonald

First Third Party : Talbot & Olivier

Second Third Party : McAuliffe Williams & Partners

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

Baldry v Jackson [1976] 2 NSW LR 415
Ketteman v Hansel Properties Ltd [1987] AC 189
Musgrove v Minister for Transport [2000] WASCA 232
Sneade v Wotherton Barytes & Lead Mining Company Ltd [1904] 1 KB 295

(Page 3)

Templeton v Hamersley Iron Pty Ltd [2001] WASCA 179
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131

Case(s) also cited:

Nil

(Page 4)

1 REGISTRAR KINGSLEY: The first and third defendants have brought an application by a minute of further amended chamber summons dated 3 April 2002 for various orders. Paragraph 1 of the amended chamber summons seeks that sub-pars 9(a), (b), (c) and (g) and…

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 Gibson v Treacy

Details

AGLC: Gibson v Treacy [2002] WADC 85
Case: [2002] WADC 85
Decision Date: 2 MAY 2002

CaseChat Overview and Summary

The case of Gibson v Treacy arose before the court, where the plaintiff sought to recover damages from the defendant for personal injuries sustained in a workplace accident. The dispute centred on the validity of an application to strike out the defendant's statement of claim and the implications of joining additional parties to the proceedings. The court had to determine the appropriate time at which an amendment to the proceedings would take effect, particularly in light of statutory requirements under workers' compensation legislation.

The legal issues before the court involved the procedural consequences of amending a statement of claim and the impact of such amendments on the timeliness of the proceedings. Specifically, the court had to consider whether the amendment was made within the statutory period prescribed by the workers' compensation legislation, and if so, whether it was valid and could be considered as having effect from the original filing date of the statement of claim. The court also needed to address the implications of joining additional parties to the claim, and whether such a joinder could be allowed under the circumstances.

In delivering its decision, the court found that the amendment to the statement of claim was indeed made within the statutory period, and thus, the amendment should be deemed to have effect from the original filing date. The court further held that the joinder of additional parties was permissible, as it did not prejudice the defendant's rights to a fair trial. The court concluded that the application to strike out the statement of claim was well-founded, and accordingly, the application was allowed. The final orders of the court mandated that the statement of claim be struck out, and additional parties be joined to the proceedings.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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