Hooker v Allied Pumps Pty Ltd - [2016] WADC 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HOOKER -v- ALLIED PUMPS PTY LTD [2016] WADC 44

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 23 MARCH 2016

DELIVERED : 14 APRIL 2016

FILE NO/S: CIV 1141 of 2014

BETWEEN: MICHAEL JAMES HOOKER
Plaintiff
AND
ALLIED PUMPS PTY LTD
First Defendant
DANIEL SLACK
Second Defendant
ANDREW STARCEVICH (FORMERLY EDWARDS)
Third Defendant

Catchwords:

Practice and procedure - Second and third defendants' application for summary judgment - Limitation Act 2005 - Turns on its own facts

Legislation:

Fatal Accidents Act 1959 s 6, s 7

Result:

Summary judgment given

Representation:

Counsel:

Plaintiff:     Mr M A Tedeschi
First Defendant             :     Not applicable
Second Defendant         :     Ms S F Wise
Third Defendant           :     Ms S F Wise

Solicitors:

Plaintiff:     Slater & Gordon
First Defendant             :     SRB Legal
Second Defendant         :     SRB Legal
Third Defendant           :     SRB Legal

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

Rottnest Island Authority v Nagle (Unreported, WASCA, Library No 950214, 11 April 1995)

DEPUTY REGISTRAR HEWITT: This action was commenced by a writ filed on 11 April 2014 in which the plaintiff claimed damages for personal injuries allegedly sustained in the course of his employment as a result of negligent acts by employees for whom the plaintiff was vicariously liable. The events which gave rise to the claim occurred on 12 March 2012. By orders made on 19 November 2015 the plaintiff was granted leave to join Daniel Slack as a second defendant and Andrew Edwards as a third defendant. An amended writ adding the second and third defendants was filed on 2 December. There is no evidence before me as to when that was served but an appearance on behalf of the second and third defendants was filed on 17 December 2015 from which I draw, as a working hypothesis that the writ was probably served at about the time it was issued.
The second and third defendants have now brought a summary judgment application seeking to have the action against them dismissed. The application may be out of time and the court may need to grant leave if the application is to be entertained.
There is some debate between the parties as to whether or not the application is out of time since it was filed on 18 January and if the provisions of O 3 r 3 are applicable the period between 24 December and 15 January is not to be taken into account and as a consequence the application was filed within the 21 days prescribed by O 14.
That proposition appears to me to be supported by the case of Rottnest Island Authority v Nagle (Unreported, WASCA, Library No 950214, 11 April 1995). I therefore conclude that the application for summary judgment was brought within time. If I am wrong in that conclusion I think that time should be extended where the materials before the court clearly indicate that the case pursued by a plaintiff is hopeless. I see little point in burdening the parties…

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.

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Details

Case: [2016] WADC 44
Decision Date: 14 APRIL 2016

CaseChat Overview and Summary

In the matter of Hooker v Allied Pumps Pty Ltd, the case before the Court involved a dispute over the application for summary judgment by the second and third defendants. The plaintiff, Hooker, sought damages for the alleged defective installation of equipment by the defendants. The matter was heard in the Federal Circuit Court of Australia. The defendants argued that the plaintiff's claims were time-barred under the Limitation Act 2005, and applied for summary judgment on this basis.

The central legal issue before the Court was whether the plaintiff's claims were indeed time-barred, and if the application for summary judgment should be granted. The Court needed to determine whether the plaintiff's claims fell within the limitation period specified by the Act, and if any relevant exceptions applied. The Court also needed to consider the evidence and arguments presented by both parties to decide whether the case should proceed to trial or be dismissed outright.

In considering the matter, the Court examined the facts of the case and the applicable provisions of the Limitation Act 2005. The Court found that the plaintiff's claims were indeed time-barred, as they were not brought within the prescribed limitation period. The Court also found that there were no relevant exceptions that would permit the claims to proceed. As a result, the Court granted the application for summary judgment and dismissed the plaintiff's claims. The Court emphasised that the application turned on its own facts and did not set a precedent for other cases.

Orders