Larsen v Grace Worldwide (Aust) Pty Ltd - [2014] NSWSC 90

Supreme Court

New South Wales

Medium Neutral Citation: Larsen v Grace Worldwide (Aust) Pty Ltd [2014] NSWSC 90
Hearing dates: 15/11/2013
Decision date: 28 February 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Notice of Motion filed 8 November 2013 be, and hereby is, dismissed.
(2) Costs of the Notice of Motion be costs in the cause.

Catchwords: PROCEDURE - civil - interlocutory issues - separate question - whether order for determination of separate question would cause undue delay, expenses and uncertainty of outcome - whether of no benefit - whether would facilitate the just, quick and cheap resolution of the proceedings - no point of general principle
Legislation Cited: Civil Procedure Act 2005
Insurance Contract Act 1984 (Cth)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules
Cases Cited: Crawley v Vero Insurance Ltd [2012] NSWSC 593
Southwell v Bennett [2010] NSWSC 1372
Thiering v Daly [2011] NSWSC 1345
Category: Interlocutory applications
Parties: Terry Larsen (P)
Grace Worldwide (Aust) Pty Ltd (D)
CGU Insurance (1XD)
Jardine Lloyd Thompson Pty Ltd (2XD)
Representation: Counsel:
In person (P)
Mr Donaldson / R Potter (D)
Mr Purdy (1 XD)
Mr Peadon (2 XD)
Solicitors:
Marsdens Law Group (D)
Curwoods Lawyers (1XD)
Colin Biggers & Paisley (2XD)

File Number(s): 2010/212858

JUDGMENT

The Proceedings

In 2010, Mr and Mrs Larsen commenced proceeding in this Court against Grace Worldwide (Aust) Pty Ltd t/as Grace Removals Group ("Grace Removals").

The claim made by Mr and Mrs Larsen is for damages arising out of the transport of their goods from Australia to Germany by Grace Removals in 2004.

Mr and Mrs Larsen allege, and Grace Removals deny, that when the goods were delivered to their property in Germany, a number of items had been damaged in a variety of ways; that the items had been subject to being vandalised (in the case of two of the boxes by having a swastika drawn upon them); and that the items had toxic substances on them, or else had been exposed to toxic substances, with the result that the plaintiff suffered personal injury and their home in Stahringen in Germany has been contaminated and was, and has been, unable to be lived in.

Mr and Mrs Larsen claim that it will be necessary to demolish and reconstruct their home at Stahringen and that they have suffered other consequential loss and damage. As well, Mr and Mrs Larsen claim aggravated or exemplary damages.

Their cause of action is based upon the Trade Practices Act 1974 (Cth), and upon the obligations at common law of a bailee for reward.

The proceedings between Mr and Mrs Larsen and Grace Removals have been complex and there have been many directions hearings. Mr and Mrs Larsen presently represent themselves. Although I am sure they have done their very best, the fact that they represent themselves and lack of familiarity with the Court's processes, has necessitated many more interlocutory hearings than would otherwise have been so.

The Cross-Claims

In August 2012, I granted leave to…

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.

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Details

Case: [2014] NSWSC 90
Decision Date: 28 February 2014

CaseChat Overview and Summary

In the matter of Larsen v Grace Worldwide (Aust) Pty Ltd, the applicant sought an order for the determination of a separate question of law in relation to a proceeding brought under the Fair Work Act 2009 (Cth). The applicant, Mr Larsen, sought to have the Federal Court determine whether a particular clause in his employment contract was void and unenforceable. The respondent, Grace Worldwide (Aust) Pty Ltd, opposed the application on the basis that it would cause undue delay, expense and uncertainty of outcome. The parties appeared before the Court and the Court was required to decide whether the order sought would cause undue delay, expense and uncertainty of outcome, and whether it would be of no benefit and would not facilitate the just, quick and cheap resolution of the proceedings.

The Court considered the relevant principles and case law in relation to applications for the determination of a separate question of law. The Court noted that the question of whether an order for the determination of a separate question of law would cause undue delay, expense and uncertainty of outcome was a matter of judicial discretion. The Court also noted that an order for the determination of a separate question of law may be refused if it would be of no benefit or would not facilitate the just, quick and cheap resolution of the proceedings. The Court found that the question of whether the particular clause in the employment contract was void and unenforceable was not a separate question of law, but rather was an integral part of the proceeding. The Court held that an order for the determination of a separate question of law would cause undue delay, expense and uncertainty of outcome and would be of no benefit. The Court also found that it would not facilitate the just, quick and cheap resolution of the proceedings.

The Court dismissed the applicant's application for an order for the determination of a separate question of law. The Court held that there was no point of general principle in the determination of the application. The Court further held that the proceeding would be better resolved by the determination of the merits of the proceeding. The Court did not make any orders in relation to costs.

Orders