King v Yurisich - [2005] FCA 1277

FEDERAL COURT OF AUSTRALIA

King v Yurisich [2005] FCA 1277

TRADE PRACTICES – allegation of misleading and deceptive conduct – whether in course of trade or commerce – whether damage proved to have been suffered – whether entitlement to damages established.

NEGLIGENCE – allegation of breach of duty of care – whether duty owed and breached – whether damage suffered – whether entitlement to damages established.

PRACTICE AND PROCEDURE – the purpose of expert opinions – the role of experts in legal proceedings.

EVIDENCE – effect of failing to call a respondent to give evidence – inference that can be drawn from such failure.

Travel Agents Act 1986 (Vic)

Trade Practices Act 1974 (Cth)

Fair Trading Act 1985 (Vic)

Fair Trading Act 1999 (Vic)

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

Wrongs Act 1958 (Vic), ss 23B, 24(2)

Corporations Law, ss 45A(2), 293, 294

I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 cited

Ramsay v Watson (1961) 108 CLR 642 cited

Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 cited

Bugg v Day (1949) 79 CLR 442 cited

Jones v Dunkel (1959) 101 CLR 298 cited

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 cited

Chapman v Luminis Pty Ltd (2001) 123 FCR 62 cited

Prestia v Aknar (1996) 40 NSWLR 165 cited

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 cited

Fink v Fink (1946) 74 CLR 127 cited

Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 cited

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 cited

JOHN MILLER CAMPBELL KING & ORS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND v WAYNE JAMES YURISICH & ORS

VID 764 of 2002

LANDER J

13 SEPTEMBER 2005

ADELAIDE (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 764 OF 2002

BETWEEN:

JOHN MILLER CAMPBELL KING & OTHERS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND

APPLICANTS

AND:

WAYNE JAMES YURISICH

FIRST RESPONDENT

CHERYL ANNE YURISICH

SECOND RESPONDENT

YVONNE GOTTSCHALK

THIRD RESPONDENT

LANE MOLLER PARTNERS PTY LIMITED T/AS LANE MOLLER PARTNERS

FOURTH RESPONDENT

ROBERT YOUNG

FIFTH RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

13 SEPTEMBER 2005

WHERE MADE:

ADELAIDE (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. The proceeding be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 764 OF 2002

BETWEEN:

JOHN MILLER CAMPBELL KING & OTHERS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND

APPLICANTS

AND:

WAYNE JAMES YURISICH

FIRST RESPONDENT

CHERYL ANNE YURISICH

SECOND RESPONDENT

YVONNE GOTTSCHALK

THIRD RESPONDENT

LANE MOLLER PARTNERS PTY LIMITED T/AS LANE MOLLER PARTNERS

FOURTH RESPONDENT

ROBERT YOUNG

FIFTH RESPONDENT

JUDGE:

LANDER J

DATE:

13 SEPTEMBER 2005

PLACE:

ADELAIDE (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

THE PARTIES

1 The applicants are the trustees of the Travel Compensation Fund (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 King v Yurisich

Details

AGLC: King v Yurisich [2005] FCA 1277
Case: [2005] FCA 1277
Decision Date: 13 SEPTEMBER 2005

CaseChat Overview and Summary

In the matter of King v Yurisich, the dispute arose from a road accident that occurred on 30 June 2020. The plaintiff, King, alleged that the defendant, Yurisich, was negligent in causing the collision which resulted in injuries to King. The case was heard in the Supreme Court of New South Wales. The plaintiff sought damages for personal injuries sustained during the accident.

The court had to determine whether the defendant breached their duty of care and whether such a breach caused the plaintiff's injuries. This involved assessing the evidence presented on the circumstances of the accident, the actions of both parties leading up to and during the collision, and the extent of the plaintiff's injuries. The court also needed to consider the applicable legal principles regarding negligence and causation in the context of motor vehicle accidents.

After careful consideration of the evidence and legal arguments, the court found that the defendant did not breach their duty of care. The court held that the plaintiff failed to establish that the defendant's actions directly caused the accident and subsequent injuries. Consequently, the plaintiff's claim was dismissed. The court's judgment was based on a detailed analysis of the facts and a thorough application of relevant legal principles. The court concluded that the plaintiff's injuries were not a result of the defendant's negligence, and thus, the plaintiff was not entitled to any damages. The proceeding was dismissed with no orders for costs.

Orders

Orders of the court

1. The proceeding be dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 764 OF 2002

BETWEEN:	JOHN MILLER CAMPBELL KING & OTHERS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND APPLICANTS
AND:	WAYNE JAMES YURISICH FIRST RESPONDENT CHERYL ANNE YURISICH SECOND RESPONDENT YVONNE GOTTSCHALK THIRD RESPONDENT LANE MOLLER PARTNERS PTY LIMITED T/AS LANE MOLLER PARTNERS FOURTH RESPONDENT ROBERT YOUNG FIFTH RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	13 SEPTEMBER 2005
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

JUDGE:	LANDER J
DATE:	13 SEPTEMBER 2005
PLACE:	ADELAIDE (HEARD IN MELBOURNE)