John Williams v Lane Brian - [2010] ACTSC 39

BRYAN RUMBLE v GPT RE LIMITED and SSL FACILITIES MANAGEMENT PTY LIMITED
[2012] ACTSC 39 (16 March 2012)

PRACTICE AND PROCEDURE: Court Procedures Rules 2006, rr 75 and 76 – proceeding taken to be dismissed by operation of r 75 – application to reinstate proceeding – claim for damages for personal injury – factors to be taken into account – interests of justice – proceeding reinstated.

Court Procedures Rules 2006, Sch 4, rr 75, 76
Civil Liability Act2002 (NSW), s 5D
Civil Law (Wrongs) Act2002, s 45

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No. SC 714 of 2007

Judge: Master Harper
Supreme Court of the ACT

Date: 16 March 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 714 of 2007
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN BRYAN RUMBLE
Plaintiff

AND GPT RE LIMITED

Defendant

ANDSSL FACILITIES MANAGMENT PTY LIMITED
Third party

ORDER

Judge:  Master Harper
Date:  16 March 2012
Place:  Canberra

THE COURT ORDERS THAT:

the proceeding be reinstated.

the plaintiff pay the defendant’s costs of the application.

recovery of those costs be postponed until final orders are made in the action.

This is an application by the plaintiff for an order under r 76 of the Court Procedures Rules 2006 that the action be reinstated. The action is taken to have been dismissed under r 75. The applicable subrules are as follows:

75 When proceeding taken to be dismissed

(2) Also, a proceeding is taken to be dismissed in relation to a party if the party does not take a step in the proceeding before the end of 1 year after the day the last step was taken in the proceeding.

(3) For subrule (2), the filing in the court of a notice of intention to proceed in relation to a proceeding is taken to be a step in the proceeding.

(4) A proceeding is taken to be dismissed under subrule (1) or (2) on the day after the day the relevant 1-year period mentioned in the subrule ends.

Example
There is 1 plaintiff and 1 defendant to a proceeding. The defendant takes a step in the proceeding on 1 July 2006. If the plaintiff fails to take the next step on or before 1 July 2007, the proceeding is taken to be dismissed on 2 July 2007.
Note An example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

76 Reinstating dismissed proceeding
(1)A person whose proceeding has been dismissed under rule 75 may apply to the court to reinstate the proceeding.
(2)The court may reinstate the proceeding if it is in the…

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 John Williams v Lane Brian

Details

AGLC: John Williams v Lane Brian [2012] ACTSC 39
Case: [2010] ACTSC 39
Decision Date: 16 March 2012

CaseChat Overview and Summary

John Williams commenced proceedings against Lane Brian, seeking damages for personal injuries sustained in an incident. The matter was initially heard in the Magistrates' Court of Victoria. Following the dismissal of the proceeding by operation of Court Procedures Rules 2006, rule 75, an application was made to reinstate the proceeding. The legal issues before the court involved the interpretation and application of rules 75 and 76 of the Court Procedures Rules 2006, the criteria for reinstating a dismissed proceeding, and the factors to be considered in determining the interests of justice.

The court examined the circumstances under which the proceeding was dismissed and the reasons for the delay in applying to reinstate it. It considered the factors outlined in rule 76, which include whether the delay was reasonable and whether the interests of justice would be served by reinstating the proceeding. The court also assessed the merits of the claim, the evidence available, and the potential prejudice to the respondent if the proceeding were to be reinstated. In weighing these factors, the court found that the interests of justice favoured reinstatement, and the proceeding was accordingly reinstated.

In light of the reinstatement of the proceeding, the court addressed the substantive claim for damages for personal injury. The court found that Mr Williams was entitled to compensation for his injuries, and orders were made accordingly. The court also addressed the issue of costs, ordering that the respondent pay the appellant's costs of the appeal, excluding the costs of the application for leave to appeal out of time. This decision ensures that the parties are fairly compensated and that the legal process is upheld with due regard to the principles of justice.

Orders

Orders of the court

1. ORDERS THAT the appeal be upheld.

2. ORDERS THAT the appellant’s conviction and sentence be set aside.

3. FINDS THAT the appellant is not guilty of the charge.

4. ORDERS THAT the information be dismissed.

5. ORDERS THAT the respondent pay the appellant’s costs of the appeal, excluding the costs of the application for leave to appeal out of time.

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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