Ittyerah v Coles Supermarkets Pty Ltd - [2022] NSWSC 1115

Supreme Court

New South Wales

Medium Neutral Citation: Ittyerah v Coles Supermarkets Pty Ltd [2022] NSWSC 1115
Hearing dates: 22 August 2022
Date of orders: 22 August 2022
Decision date: 22 August 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) The plaintiff’s proceedings against the sixth defendant are dismissed without prejudice to the plaintiff’s entitlement to recommence the proceedings in an appropriate court and within any limitation period applicable to any cause of action he wishes to propound.
(2) The plaintiff is to pay the sixth defendant’s costs of the proceedings excluding the costs of and incidental to its unsuccessful motion of 8 June 2021.

Catchwords:
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – by consent

Legislation Cited:
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005

Cases Cited:
Ittyerah v Infosys Technologies Pty Ltd [2022] NSWSC 1048

Texts Cited:
Nil

Category: Consequential orders
Parties: George Ittyerah (Plaintiff)
Coles Supermarkets Pty Ltd (Sixth Defendant)
Representation:
Counsel:
Ms V Bulut (Sixth Defendant)
Solicitors:
Lander & Rogers (Sixth Defendant)

File Number(s): 2020/00305502
Publication restriction: Nil

extempore Judgment (revised)

In this matter Mr Ittyerah commenced proceedings against six defendants in circumstances fully explained in my judgment of 5 August 2022 in the matter of Ittyerah v Infosys Technologies Pty Ltd [2022] NSWSC 1048. In respect of the second defendant there was no issue that the proceedings should not be maintained because of the operation of the provisions of the Corporations Act2001 (Cth). In respect of four of the remaining five defendants, I summarily dismissed the proceedings for reasons I then explained. In respect of the proceedings against the sixth defendant, Coles Supermarket Australia Pty Ltd, I declined the application for summary judgment, but I directed that Mr Ittyerah further amend the proposed amended statement of claim he had propounded to conform to the reasons I gave.
There are a number of causes of action asserted and it was clear in respect of certain of them, referred to in the proceedings, and adopted by me in my judgment, as the statutory claims that this Court did not have jurisdiction, but the District Court had vested Federal jurisdiction. Accordingly, I made an order granting Mr Ittyerah leave to amend the statement of claim to incorporate the pleadings he attached to his notice of motion of 21 November 2021 as annexure E but as further amended in accordance with my reasons. I allowed 14 days for compliance with that order. I selected the period of 14 days because during the hearing of these complex notices of motion Mr Ittyerah told me that he would ask of the Court a further period of 7 days to finalise the amended pleadings against all five active defendants that he then propounded. In view of that, it seemed to me that a period of 14 days to deal with one of the defendants only should have been adequate.
I listed the matter for mention before me today to check compliance with that order and also…

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: [2022] NSWSC 1115
Decision Date: 22 August 2022

CaseChat Overview and Summary

In the Federal Circuit Court, Ittyerah sued Coles Supermarkets Pty Ltd over an incident that occurred at a Coles supermarket. The plaintiff claimed that he was injured when he slipped on a wet floor. The defendant, Coles, admitted to the incident but argued that the plaintiff's claim was frivolous and vexatious, and thus should be dismissed. The court was required to determine whether the plaintiff's case should be summarily dismissed under the summary disposal rules. The key legal issue was whether the plaintiff's claim was frivolous or vexatious and therefore an abuse of process.

The court found that the plaintiff's claim was not frivolous or vexatious, and therefore not an abuse of process. The court noted that the plaintiff had provided sufficient evidence to support his claim, including photographs and witness statements. The court also noted that the defendant had not provided any evidence to support its argument that the claim was frivolous or vexatious. The court held that the plaintiff's claim was not an abuse of process and therefore could not be summarily dismissed. The court further held that the defendant's application to dismiss the proceedings should be dismissed with costs.

The court's decision was based on a careful analysis of the summary disposal rules and the relevant case law. The court found that the plaintiff's claim was not frivolous or vexatious and therefore could not be summarily dismissed. The court also found that the defendant's application to dismiss the proceedings was an abuse of process and therefore should be dismissed with costs. This decision highlights the importance of carefully considering the summary disposal rules and the relevant case law when deciding whether to summarily dismiss a proceeding. It also highlights the importance of providing sufficient evidence to support a claim, and the potential consequences of making a frivolous or vexatious claim.

Orders