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Jausnik v Nominal Defendant (No 4)

Jausnik v Nominal Defendant (No 4)

Case [2015] ACTSC 251 25 August 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Jausnik v Nominal Defendant (No 4)
Citation:	[2015] ACTSC 251
Hearing Date:	21 August 2015
DecisionDate:	25 August 2015
Before:	Mossop AsJ
Decision:	The application is dismissed with costs.
Category:	Interlocutory Application
Catchwords:	PROCEDURE – Application for leave to amend defence by first third party – amendment sought to introduce statutory provision as complete defence to claim – amendment sought after completion of evidence – sole reason for delay failure to consider statutory provision before bringing present application – amendment introduces questions of law and questions of fact – amendment affects claim against second third party now subject to limitation period – application dismissed
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) s 21 Limitation Act 1985 (ACT) s 21 Corporations Act 2001 (Cth) s 911A Law Reform (Vicarious Liability) Act 1983 (NSW) s 8 Motor Accidents Act 1988 (NSW) s 66 Police Act 1990 (NSW) s 213 Workers Compensation Act 1987 (NSW) s 151F Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 4 Court Procedures Rules 2006 (ACT) rr 21, 502, 503 Corporations Regulations 2001 (Cth) reg 7.1.29
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd (No 2) (2015) 106 ACSR 469 Commonwealth v Angel (1992) 110 ALR 695 Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 Electro Optic Systems Pty Ltd v NSW (2014) 10 ACTLR 1 Enever v The King (1906) 3 CLR 969 Gosford City Council v Timbs [1999] NSWCA 255 Jausnik v Nominal Defendant [2014] ACTSC 406 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Pringle v Everingham [2006] NSWCA 195 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 Royster v Cavey [1947] KB 204 Zardo v Ivancic [2001] ACTSC 4 Zardo v Ivancic [2001] ACTSC 40
Parties:	Nominal Defendant (Defendant) Michael Hannaford (First Third Party) State of New South Wales (Second Third Party)
Representation:	Counsel Mr PJ Deakin QC (Defendant) Mr GM Watson SC (First Third Party) Ms L Sherman (Second Third Party)
Solicitors Minter Ellison (Defendant) Moray & Agnew (First Third Party) HWL Ebsworth (Second Third Party)
File Number:	SC 291 of 2012

Application

These proceedings involve a claim for contribution by the nominal defendant against an individual police officer and the State of New South Wales. The nominal defendant has settled with the plaintiff, a police officer, and now seeks to recover contribution from other parties said to be concurrent wrongdoers. The nature of this case is explained in more detail in an earlier interlocutory decision Jausnik v Nominal Defendant [2014] ACTSC 406 at [4]-[8] as follows:

[4]The proceedings arise out of a motor vehicle accident which occurred on 20 March 2010. The plaintiff and the first third-party were in a police vehicle pursuing a driver of an unregistered motor…

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 Jausnik v Nominal Defendant (No 4)

Details

AGLC: Jausnik v Nominal Defendant (No 4) [2015] ACTSC 251
Case: [2015] ACTSC 251
Decision Date: 25 August 2015

CaseChat Overview and Summary

Jausnik v Nominal Defendant (No 4) concerned an application by the first third party to amend the defence to introduce a statutory provision as a complete defence to the claim. The application was brought after the completion of evidence, and the sole reason for the delay was the failure to consider the statutory provision before bringing the present application. The proposed amendment introduced both questions of law and questions of fact, and it would affect the claim against the second third party, which was now subject to a limitation period.

The central legal issues before the court were whether the amendment was permissible under the relevant rules of procedure and whether the delay in bringing the application would prejudice the other parties. The court had to consider whether the proposed amendment would introduce new issues that had not been addressed during the course of the trial and whether the amendment would prejudice the other parties, particularly given the delay in bringing the application.

The court held that the amendment was not permissible as it introduced new questions of law and fact and would prejudice the other parties. The court noted that the failure to consider the statutory provision before bringing the application was the sole reason for the delay, and this delay would prejudice the other parties. The court also noted that the amendment would affect the claim against the second third party, which was now subject to a limitation period. Accordingly, the application was dismissed with costs.

Orders

Orders of the court

The application is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Jausnik v Nominal Defendant (No 4) [2015] ACTSC 251

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 16 of 16 shown

Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd (No 2)
[2015] NSWSC 782 Para 1

…econdly he referred to the decision of Sackville AJA in Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd (No 2) (2015) 106 ACSR 469 (‘ Park Trent ’) in which his Honour refused leave to amend a defence where the application for leave occurred on the sixth day of a seven day trial…
Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd
[2015] NSWSC 355 Para 1

…Secondly he referred to the decision of Sackville AJA in Australian Securities and Investments Commission v Park Trent Properties Group Pty Ltd (No 2) (2015) 106 ACSR 469 (‘ Park Trent ’) in which his Honour refused leave to amend a defence where the application for leave occurred on the sixth day o…
Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd
[2015] NSWCA 73 Para 1

…f it had not been raised at any stage below. He submitted that in the decision in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 (‘ Ceva Logistics ’) Leeming JA made clear, in the context of a question of choice of law, that the agreement of the parties did not displace the Court’s…
Jausnik v The Nominal Defendant
[2014] ACTSC 406 Para 1

…aid to be concurrent wrongdoers. The nature of this case is explained in more detail in an earlier interlocutory decision Jausnik v Nominal Defendant [2014] ACTSC 406 at [4]-[8] as follows:…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 1

…The power to amend is that in r 502 of the Court Procedures Rules 2006 (ACT) (‘Rules’). That is the power which was considered in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (‘ Aon ’). Significant for the purposes of that decision were the terms of r 21 of the Rules which provide:…
Pringle v Everingham
[2006] NSWCA 195 Para 1

…dealt with in Yates is consistent with the reasons of Hunt AJA delivering the judgment of the New South Wales Court of Appeal in Pringle v Everingham [2006] NSWCA 195. In that case a District Court judge had permitted the defendant police officers to rely upon defences of justification and self defence, including t…
Zardo v Ivancic
[2001] ACTSC 40 Para 1

…to by the nominal defendant was Zardo v Ivancic [2001] ACTSC 4. That decision was overturned by a full Court of the Supreme Court in Zardo v Ivancic [2001] ACTSC 40. The differing conclusions reached by the Master and the Full Court illustrate the fact that notwithstanding the general presumption that a law is no…
John Pfeiffer Pty Ltd v Rogerson
[2000] HCA 36 Para 1

…hich occurred in the Australian Capital Territory. In those circumstances, given that as a result of the decision in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 the law to be applied was the law of the place of the tort, the first third party had not established that it was arguable that s 213 of the Police A…
Gosford City Council v Timbs
[1999] NSWCA 255 Para 1

…nd represents an exceptional circumstance when reliance is sought to be placed on statutory provisions is illustrated by Gosford City Council v Timbs [1999] NSWCA 255. In that case the conduct of the case, inconsistent with authority and a statutory provision, on the basis that a local council was the occupier of a…
Queensland v JL holdings Pty Ltd
[1997] HCA 1 Para 1

…idered that a new trial was necessary. It is notable that this approach was informed by the pre- Aon authorities, in particular the decision in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 which was overturned by the decision in Aon : see [48]. However for present purposes the significance of the case is that in addressing the pos…
Yates v Electricity Commission of New South Wales
[1992] HCATrans 176 Para 1

…r of granting leave to amend. He referred to the decision of the New South Wales Court of Appeal in Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 (‘ Yates ’) as illustrating the proposition that even on appeal a party may be entitled to raise a statutory provision which the Court was obliged to…
Commonwealth of Australia v Angel, R.J
[1992] FCA 102 Para 1

…remittal to a statutory office that had been abolished by statute and to substitute a remittal to the correct statutory office: Commonwealth v Angel (1992) 110 ALR 695.…
Metwally v University of Wollongong
[1985] HCA 28

…1 QB 509 at 519. In Coulton v Holcombe (at 8), the majority quoted and applied the following statement in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; sub nom Metwally v University of Wollongong 60 ALR 68 at 71: “It is elementary that a party is bound by the conduct of his case. Except in th…
Enever v the King
[1906] HCA 3 Para 1

…les that it is vicariously liable for the conduct of Mr Hannaford. Any such pleading would presumably, by reason of the doctrine in Enever v The King (1906) 3 CLR 969, need to be pursuant to a statutory provision such as that in s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). Indeed that Act provides a…
[1947] KB 204
[1947] KB 204 Para 1

…t’s obligation to identify the applicable law: [15]. In the same vein he referred to the decision of the Court of Appeal in Royster v Cavey [1947] KB 204 in which the Court refused to accept a fiction agreed to by the parties as to how the proceedings should be constituted.…
[1972] 1 QB 509
[1972] 1 QB 509

…rection to apply the 1989 Act, the courts were obliged to do that apart from any express legislative instruction to that effect: see Wilson v Dagnall [1972] 1 QB 509 at 519. In Coulton v Holcombe (at 8), the majority quoted and applied the following statement in University of Wollongong v Metwally (No 2) (1985) 59…

Legislation cited in this decision · 10

Court Procedures Rules 2006 (ACT)
21, 502, 503 4 mentions (from Para 1)
Civil Law (Wrongs) Act 2002 (ACT)
21 2 mentions (from Para 1)
Corporations Act 2001 (Cth)
911A 2 mentions (from Para 1)
Corporations Regulations 2001 (Cth)
7.1.29 2 mentions (from Para 1)
Law Reform (Vicarious Liability) Act 1983 (NSW)
8 2 mentions (from Para 1)
Limitation Act 1985 (ACT)
21 2 mentions (from Para 1)
Motor Accidents Act 1988 (NSW)
66 2 mentions (from Para 1)
Police Act 1990 (NSW)
213 2 mentions (from Para 1)
Workers Compensation Act 1987 (NSW)
151F 2 mentions (from Para 1)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
4 2 mentions (from Para 1)