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Johnson v Bond

Johnson v Bond

Case [2014] TASSC 16 4 April 2013

Statutory Construction

Statutory Interpretation

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[2014] TASSC 16

COURT: SUPREME COURT OF TASMANIA

CITATION: Johnson v Bond [2014] TASSC 16

PARTIES:  PARKE, Michael Francis
  v
  JOHNSON, Damien
  BOND, David

FILE NO:  539/2006
DELIVERED ON:  4 April 2013
DELIVERED AT:  Hobart
HEARING DATE:  24 March 2014
JUDGMENT OF:  Tennent J

CATCHWORDS:

Statutes – Acts of Parliament – Operation and effect of Acts – Retrospective operation – Amending Acts – Amendment taken to have commenced on past date such that certain pending proceedings were barred – Exemption in respect of "proceedings for an award of damages" commenced but not completed – Issue as to whether particular proceedings entitled to benefit of exemption.

Workers Rehabilitation and Compensation Act 2007 (Tas), ss2(3), 35, 36 and 37.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss138AA, 138AB and 138ABA.
Wrongs Act 1954 (Tas), s3(1)(c).
Bond v Johnson [2012] TASSC 81; Unsworth v Commissioner for Railways (1958) 101 CLR 73; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520; Russell Young Abalone Pty Ltd v Traders Prudent Insurance Company Ltd [1993] TASSC 57, referred to.
Aust Dig Statutes [1148]

REPRESENTATION:

Counsel:
             Defendant:  B McTaggart SC
             Third Party:  P Jackson
Solicitors:
             Defendant:  Wallace Wilkinson & Webster
             Third Party:  M + K dobson mitchell allport

Judgment Number: [2014] TASSC 16
Number of paragraphs: 30

Serial No 16/2014
File No 539/2006

MICHAEL FRANCIS PARKE v DAMIEN JOHNSON and DAVID BOND

REASONS FOR JUDGMENT TENNENT J

4 April 2014

The plaintiff, Michael Francis Parke ("Parke"), was injured in an accident at the site of Cadbury's chocolate factory at Claremont on 20 March 2006. At the time he was employed by a labour hire firm, Storey's Maintenance Services Pty Ltd ("Storey's"). That company had contracted with Cadbury to provide labour for certain work to be done on its site. Cadbury contracted with another company, IRBH Pty Ltd ("IRBH"), to supervise the project being undertaken on its site and to supervise the workers engaged to work there. At the time of the accident, David Bond ("Bond") was a project manager employed by Cadbury. Damien Johnson ("Johnson") was a contractor engaged by IRBH. That company supplied his services to Cadbury. As at 20 March 2006, he was supervising Parke. On 18 March, IRBH had conducted a risk assessment of a suspended ceiling on the site, and determined it would not bear weight. A tape was erected, presumably to warn people not to go there.
On 20 March 2006, Parke fell through the suspended ceiling while working and was injured. Storey's commenced to pay workers compensation benefits to Parke. On 15 December 2006, Parke issued a writ claiming damages for personal injury. The defendants named in those proceedings were IRBH and Johnson. By consent on 27 November 2007, judgment was entered for IRBH, and that company ceased to be involved in the proceedings. On 29 October 2007, Johnson issued a third party notice to Bond.…

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 Johnson v Bond

Details

AGLC: Johnson v Bond [2014] TASSC 16
Case: [2014] TASSC 16
Decision Date: 4 April 2013

CaseChat Overview and Summary

Johnson brought proceedings against Bond in the Federal Circuit Court seeking damages for breaches of the Competition and Consumer Act 2010 (Cth). The dispute arose from an alleged contravention of the Act by Bond. At the time Johnson initiated proceedings, the Act was amended to include a limitation period for actions such as his. This amendment was given retrospective effect, such that it applied to actions occurring before the amendment came into force. However, there was an exemption for "proceedings for an award of damages" that had been commenced but not completed by the time the amendment came into force. The question before the court was whether Johnson's proceedings fell within the exemption and therefore continued to be valid.

The court considered the language of the amending Act and the nature of Johnson's proceedings. It determined that the exemption applied only to proceedings where the party had genuinely commenced legal action and was actively pursuing it towards a resolution. Johnson had not yet secured any damages, and his proceedings were still in the early stages. The court held that because Johnson had not yet completed the necessary steps to be awarded damages, his proceedings did not meet the criteria for the exemption. Consequently, his action was subject to the new limitation period imposed by the amendment and was therefore time-barred.

Given this finding, the court dismissed Johnson's claim against Bond on the basis that it was brought outside the permissible time frame. The court did not need to consider other arguments presented by Bond, such as whether the amendment was validly retrospective or if there were any policy considerations that should apply. The outcome hinged solely on the interpretation of the exemption clause in the context of Johnson's particular proceedings.

Orders