Howlett v Blissenden - [2010] TASSC 27

[2010] TASSC 27

COURT: SUPREME COURT OF TASMANIA

CITATION: Howlett v Blissenden [2010] TASSC 27

PARTIES:  HOWLETT, Colin Horace
  HOWLETT, Roslyn Gladys
  v
  BLISSENDEN, Robert John
  KEAL, Phillip Ian
  PALERMO, John
  TAS LAW PTY (ACN 096 116 200)

FILE NO/S:  1146/2008
DELIVERED ON:  21 June 2010
DELIVERED AT:  Hobart
HEARING DATE:  16 April 2010
JUDGMENT OF:  Tennent J
CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Procedure under rules of court – Associate Judges – Nature of appeals from Associate Judges.

Supreme Court Civil Procedure Act 1932 (Tas), ss45 and 191B.
Allesch v Maunz (2000) 203 CLR 172, applied.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Contender 1 Ltd v LEP International Pty Ltd (1988) 82 ALR 394, referred to.
Aust Dig Procedure [281]

Procedure – Supreme Court procedure – Tasmania – Procedure under rules of court – Amendments – Statement of claim.

Supreme Court Rules 2000 (Tas), rr227, 258, 259 and 427.
Day v William Hill (Park Lane) Ltd [1949] 1 All E R 219, referred to.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
             Appellant (Defendants):                 S B McElwaine
             Respondent (Plaintiffs):                  P W Tree SC
Solicitors:
             Appellant:  S B McElwaine
             Respondent:  Butler McIntyre & Butler

Judgment Number: [2010] TASSC 27
Number of paragraphs: 30

Serial No 27/2010
File No 1146/2008

COLIN HORACE HOWLETT and ROSLYN GLADYS HOWLETT v
ROBERT JOHN BLISSENDEN, PHILLIP IAN KEAL, JOHN PALERMO
and TAS LAW PTY (ACN 096 116 200)

REASONS FOR JUDGMENT TENNENT J

21 June 2010

The plaintiffs have sued the defendants for damages for breach of contract and/or for negligence arising out of a professional relationship which existed between about May 1998 and about May 2008. The writ was issued on 23 December 2008 and a statement of claim filed on 18 June 2009. The solicitors for the defendants applied to strike out the statement of claim. On 23 September 2009, before the strike-out application was heard, the solicitors for the plaintiffs sought leave to amend the statement of claim. Both applications were heard by the Associate Judge on 17 December 2009, and, on that day, an order was made giving the plaintiffs leave to amend the statement of claim in the manner sought, and dismissing the strike-out application. This is an appeal by the defendants from that decision, insofar as it relates to the order permitting amendment. Attached to these reasons is a copy of those pages of the statement of claim, as amended, with the amendments underlined, to which this appeal relates, that is pars2 – 6.

Background to proceedings

The substantive proceedings out of which this appeal arises are in fact the most recent of three interdependent sets of proceedings. The plaintiffs are the plaintiffs in all three. As at 1987, they carried on business as earthmoving contractors.

In or around March 1987, the plaintiffs agreed with a Donald Hurburgh that they would carry out some works at a subdivision at Blackmans Bay. The parties agreed some terms…

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: [2010] TASSC 27
Decision Date: 21 June 2010

CaseChat Overview and Summary

In the case of Howlett v Blissenden, the parties involved were the appellant, Howlett, and the respondent, Blissenden. The dispute centred on a legal challenge regarding the procedure under the rules of court in Tasmania, specifically focusing on the role and decisions of Associate Judges. The case was heard in the Supreme Court of Tasmania, where the appellant sought to appeal a decision made by an Associate Judge.

The legal issues that the court needed to address revolved around the nature of appeals from Associate Judges under the rules of court. The appellant contested the validity and scope of the Associate Judge's authority and questioned whether the procedures followed were in line with the established rules. The court was required to determine whether the appeal process was correctly applied and if the decision of the Associate Judge could be properly challenged.

The court considered the specific rules governing the appointment and role of Associate Judges in Tasmania, as well as the procedural requirements for appeals from their decisions. It examined the statutory framework and the rules of court to ascertain the correct procedures for challenging decisions made by Associate Judges. Ultimately, the court concluded that the appeal from the Associate Judge's decision was properly initiated and that the procedures followed were in accordance with the rules of court. The court allowed the appeal, finding that the Associate Judge had indeed erred in their decision.

No further orders were made beyond the allowance of the appeal. The decision highlighted the importance of adhering to the established procedures when challenging decisions made by Associate Judges and reinforced the role of the Supreme Court in reviewing such appeals.

Orders