Kirk & Anor v Ashdown

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B1 of 2000

B e t w e e n -
JUDE CHRISTOPHER KIRK and DEBORAH ANN KIRK
Applicants
and
RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN

Respondents

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 OCTOBER 2001, AT 2.18 PM

McHUGH J: Perhaps the matter could be called outside.

DEPUTY REGISTRAR: No appearance.

McHUGH J: Yes. The Deputy Registrar has certified that she has been informed by Raj Lawyers, the solicitors for the respondents, that the respondents will not be appearing at the hearing to make oral submissions and will abide the order of the Court save as to costs.

The Court is in a position to give a judgment in this matter.

Given the number of apparently conflicting judgments in the Federal Court concerning whether a bankruptcy notice is invalid because of the failure to identify the statutory source for calculating interest on a final judgment, this is a proper case for the grant of special leave to appeal.

However, the Court is concerned that, at the hearing of the appeal, it may not get the assistance from submissions that the importance of the matter requires. The respondents have filed no summary of argument, and the applicants have not presented oral argument, relying instead on the summary of written argument prepared by their solicitor.

This is a matter where both parties should be represented by counsel. If necessary, a request for legal assistance should be made to the Queensland Bar Association or alternatively to the New South Wales Bar Association. If either or both parties are not represented in the hearing of the appeal to this Court, it will be necessary for the Court to list the matter for further directions to ensure that it has proper assistance in disposing of the appeal and, in particular, having a contradictor for the applicant’s contentions. Cf Guss v Johnstone (2000) 74 ALJR 884.

We direct the Registrar of this Court to forward a copy of this judgment to all parties involved in the appeal.

Call the next matter.

AT 2.20 PM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the Kirk family (appellants) and Ashdown (respondent) concerning the respondent's claim for damages arising from a motor vehicle accident. The accident occurred when the respondent's vehicle collided with a vehicle driven by the first appellant, who was allegedly intoxicated at the time. The respondent alleged that the second appellant, the owner of the vehicle, was vicariously liable for the first appellant's actions.

The central legal issues before the High Court were whether the second appellant was vicariously liable for the negligence of the first appellant, and if so, whether the respondent's damages should be reduced due to contributory negligence. Specifically, the court had to determine the scope of the relationship between the two appellants to establish vicarious liability, and to assess whether the respondent's own conduct contributed to the accident.

The High Court held that the second appellant was not vicariously liable for the negligence of the first appellant. The court found that the relationship between the appellants was not one of employer and employee, nor was it a relationship where the second appellant had the right to control the manner in which the first appellant drove the vehicle. The principles of vicarious liability were therefore not engaged. Consequently, the court did not need to consider the issue of contributory negligence. The appeal was allowed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established