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Leach by her tutor Leach v Harpur

Leach by her tutor Leach v Harpur

Case [2017] NSWDC 251 8 September 2017

Contributory Negligence

Consent Judgment

Costs

Tort Law

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Leach by her tutor Leach v Harpur [2017] NSWDC 251
Hearing dates: 15 August 2017
Date of orders: 08 September 2017
Decision date: 08 September 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to ss 63 and 75 – 77 Civil Procedure Act 2005 (NSW), I enter order (1) (as revised) in accordance with the Consent Judgment dated 1 April 2016 (see order (2) below).
(2) Pursuant to s 76 Civil Procedure Act 2005 (NSW), and in accordance with s 30 Civil Liability Act 2002 (NSW), the judgment sum in these proceedings is to be reduced by 30% by reason of the contributory negligence of Tyler Leach.
(3) The plaintiff’s Notice of Motion filed on 21 July 2017 is stood over to the trial judge.
(4) Reserve the issue of costs to the trial judge.
(5) Liberty to apply in relation to costs.
(6) Confirm the hearing date of Monday 6 November 2017.

Catchwords: TORT – personal injury – agreement as to contributory negligence approved by the court pursuant to ss 75 – 77 Civil Procedure Act 2005 (NSW) – prior to the hearing date, the plaintiff seeks to withdraw on the basis of fundamental misapprehension of the legal issues by her former counsel – whether plaintiff should be permitted to withdraw - whether order “entered” – whether unentered order should be set aside – order entered but other issues referred to trial judge – observations as to the correct system of electronic entry of orders on JusticeLink
Legislation Cited: Civil Liability Act 2002 (NSW), s 30
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 61, 62, 63, 73, 75, 76, 77 and 133
District Court Act 1973 (NSW)
District Court Rules 1973 (NSW)
Motor Accidents Compensation Act 1999 (NSW), ss 7K and 7L
Uniform Civil Procedure Rules 2005 (NSW), Part 3, Part 39, Part 40; rr 28.2, 36.1A, 36.4, 36.11 and 36.15
Cases Cited: Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304
Consolidated Lawyers Ltd v Aby-Mahmood [2016] NSWCA 4
Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245
Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542
Dimarti v Dimarti [2015] NSWSC 97
Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388
Futhem Pty Ltd v Mills [2012] NSWDC 127
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342
Mills v Futhem Pty Ltd (2011) 81 NSWLR 538; [2011] NSWCA 252
Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687
New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950
Nominal Defendant v Livaja [2011] NSWCA 121
Palmer v Clarke (1989) 19 NSWLR 158
Permanent Trustee Company Limited v Mills [2007] NSWSC 336
S Hoffnung & Co Ltd v Hesky [1977] 2 NSWLR 669
Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248
Wentworth v Rogers [2002] NSWSC 921

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 Leach by her tutor Leach v Harpur

Details

AGLC: Leach by her tutor Leach v Harpur [2017] NSWDC 251
Case: [2017] NSWDC 251
Decision Date: 08 September 2017

CaseChat Overview and Summary

The case of Leach by her tutor Leach v Harpur involves a personal injury dispute where the plaintiff, Tyler Leach, seeks to withdraw from the proceedings due to a fundamental misapprehension of the legal issues by her former counsel. The matter was before the Supreme Court of New South Wales. The primary issue the court had to decide was whether the plaintiff should be permitted to withdraw from the proceedings and if so, whether the unentered order should be set aside. Additionally, the court needed to address the correct system of electronic entry of orders on JusticeLink.

In examining the matter, the court acknowledged that the plaintiff sought to withdraw based on a fundamental misapprehension of the legal issues by her former counsel. The court noted that the consent judgment, which included an agreement on contributory negligence, was entered but had not been formally set aside. The court considered the implications of such an unentered order and whether it should be set aside. Ultimately, the court decided to enter the order in accordance with the Consent Judgment dated 1 April 2016. The judgment sum was to be reduced by 30% due to the contributory negligence of Tyler Leach. The plaintiff’s Notice of Motion was stood over to the trial judge, and the issues of costs were reserved for the trial judge. The hearing date was confirmed for 6 November 2017.

Orders

Orders of the court

(1) Pursuant to ss 63 and 75 – 77 Civil Procedure Act 2005 (NSW), I enter order (1) (as revised) in accordance with the Consent Judgment dated 1 April 2016 (see order (2) below).

(2) Pursuant to s 76 Civil Procedure Act 2005 (NSW), and in accordance with s 30 Civil Liability Act 2002 (NSW), the judgment sum in these proceedings is to be reduced by 30% by reason of the contributory negligence of Tyler Leach.

(3) The plaintiff’s Notice of Motion filed on 21 July 2017 is stood over to the trial judge.

(4) Reserve the issue of costs to the trial judge.

(5) Liberty to apply in relation to costs.

(6) Confirm the hearing date of Monday 6 November 2017.

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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Citations

Leach by her tutor Leach v Harpur [2017] NSWDC 251

Cases Citing This Decision

No citing cases yet.

Cases Cited

Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4
Citation 1 (Para 72)

…one SC ( Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304; Wentworth v Rogers [2002] NSWSC 921 at [7]; Consolidated Lawyers Ltd v Aby-Mahmood [2016] NSWCA 4 and New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950 at [20]) the court had full argument put before it.…
Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342
Citation 2 (Para 60)

…However, this is not a rule of general import. In Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342 at [14], Bathurst CJ stated:…
Dimarti v Dimarti [2015] NSWSC 97
Citation 3 (Para 69)

…I were to enter it properly, as part of this judgment), then the court has power to set it aside under s 73, noting observations in Dimarti v Dimarti [2015] NSWSC 97 by Lindsay J that the appropriate way to seek such orders is the method adopted by the plaintiff in these proceedings.…
Futhem Pty Ltd v Mills [2012] NSWDC 127
Citation 4 (Para 45)

…As is set out in Futhem Pty Ltd v Mills [2012] NSWDC 127 at [12]-[17], the orders for settlement made in those proceedings were not made on JusticeLink but on a system called CourtNet, its predecessor, a system of somewhat limited nature, in that it used free text where the end user must physically type in case inf…
Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388
Citation 5 (Para 75)

…spute that s 76 Civil Procedure Act 2005 (NSW) is an enabling provision of a protective nature ( Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 at [30]) and that while the court may rely on the evidence put before it by the parties, ultimately the court exercises its own independent judgment…
Mills v Futhem Pty Ltd [2011] NSWCA 252
Citation 6 (Para 5)

…Justice P W Young AO, “Current Issues” (2011) 85 ALJ 615 at 618, setting out the relevant portion of Mills v Futhem Pty Ltd (2011) 81 NSWLR 538; [2011] NSWCA 252, where Allsop P set out the necessary procedures), “the cost of complying with the Rule is so great that people have been avoiding it”.…
Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245
Citation 7 (Para 5)

…y on JusticeLink identified as necessary by Young JA for busy court lists ( Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245) has never been followed by the profession because, as his Honour noted extra-curially (Mr Justice P W Young AO, “Current Issues” (2011) 85 ALJ 615 a…
Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248
Citation 8 (Para 53)

…Neither of the parties before me referred to this decision, or to the observations of Basten JA in Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 concerning “disturbing aspects” of JusticeLink (at [6]) in relation to the entry of judgment. In Tarrant v Statewide Secured Investments Ltd , the orders in…
Nominal Defendant v Livaja [2011] NSWCA 121
Citation 9 (Para 57)

…her cases in which JusticeLink issues had arisen, his Honour may have been referring to the similar problem which arose in Nominal Defendant v Livaja [2011] NSWCA 121, where the trial judge, after correcting his calculations in relation to the judgment, failed to enter the judgment orders onto JusticeLink at all (a…
Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304
Citation 10 (Para 72)

…reement, for the reasons set out by Bathurst CJ above. By contrast, in the cases relied upon by Mr Stone SC ( Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304; Wentworth v Rogers [2002] NSWSC 921 at [7]; Consolidated Lawyers Ltd v Aby-Mahmood [2016] NSWCA 4 and New Cap Reinsurance Corporation Ltd v Grant [2009]…
Nau v Kemp & Associates [2010] NSWCA 164
Citation 11 (Para 46)

…ver electronically. This applied not only to the orders made in Futhem Pty Ltd v Mills but also to the orders made in Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687, the year before Mills v Futhem Pty Ltd , although the Court of Appeal raised none of the objections which would later be taken in Mills v Futhem Pty…
New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950
Citation 12 (Para 72)

…Wentworth v Rogers [2002] NSWSC 921 at [7]; Consolidated Lawyers Ltd v Aby-Mahmood [2016] NSWCA 4 and New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950 at [20]) the court had full argument put before it.…
Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542
Citation 13 (Para 28)

…In Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542, Nicholas J examined a situation where an offer of compromise was accepted but a dispute arose as to its enforceability. His Honour observed the following (at [19]-[22]):…
Permanent Trustee Company Ltd v Mills [2007] NSWSC 336
Citation 14 (Para 75)

…on the evidence put before it by the parties, ultimately the court exercises its own independent judgment ( Permanent Trustee Company Limited v Mills [2007] NSWSC 336). While the agreement of the tutor and opinions from legal advisers as to the appropriateness of the settlement may be persuasive, the court should c…
Wentworth v Rogers (No 9) [2002] NSWSC 921
Citation 15 (Para 72)

…athurst CJ above. By contrast, in the cases relied upon by Mr Stone SC ( Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304; Wentworth v Rogers [2002] NSWSC 921 at [7]; Consolidated Lawyers Ltd v Aby-Mahmood [2016] NSWCA 4 and New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950 at [20]) the court had ful…
Vella v John Fairfax Publications Pty Ltd [2000] NSWSC 615
Citation 16 (Para 51)

…that the parties have settled, but not disclosing the amount. This practice has long been used in New South Wales: S Hoffnung & Co Ltd v Hesky [1977] 2 NSWLR 669. In Nau v Kemp & Associates Pty Ltd , the New South Wales Court of Appeal did not have the argument put before it that succeeded in Mills v Futhem Pt…
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Citation 17 (Para 66)

…Mr Stone SC’s argument was not so manifestly hopeless that the General Steel test ( General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125) applied, and said very little more.…
Palmer v Clarke 45 ER 206
Citation 18 (Para 20)

…In Palmer v Clarke (1989) 19 NSWLR 158, Kirby P, after considering the previous legislative framework governing the District Court, namely the District Court Act 1973 (NSW) and District Court Rules 1973 (NSW), explained the effect of District Court judges pronouncing judgment or making orders:…

Legislation Cited

Civil Procedure Act 2005 (NSW) 133, 56, 57, 58, 59, 60, 61, 62, 63, 73,...
14 mentions (from Para 1)
Motor Accidents Compensation Act 1999 (NSW) 7K, 7L
3 mentions (from Para 3)
Civil Liability Act 2002 (TAS) 30
2 mentions (from Para 3)
District Court Act 1973 (NSW)
1 mention (from Para 20)
District Court Rules 1973 (NSW)
1 mention (from Para 20)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
1 mention
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 4)

Medium Neutral Citation:	Leach by her tutor Leach v Harpur [2017] NSWDC 251
Hearing dates:	15 August 2017
Date of orders:	08 September 2017
Decision date:	08 September 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to ss 63 and 75 – 77 Civil Procedure Act 2005 (NSW), I enter order (1) (as revised) in accordance with the Consent Judgment dated 1 April 2016 (see order (2) below). (2) Pursuant to s 76 Civil Procedure Act 2005 (NSW), and in accordance with s 30 Civil Liability Act 2002 (NSW), the judgment sum in these proceedings is to be reduced by 30% by reason of the contributory negligence of Tyler Leach. (3) The plaintiff’s Notice of Motion filed on 21 July 2017 is stood over to the trial judge. (4) Reserve the issue of costs to the trial judge. (5) Liberty to apply in relation to costs. (6) Confirm the hearing date of Monday 6 November 2017.
Catchwords:	TORT – personal injury – agreement as to contributory negligence approved by the court pursuant to ss 75 – 77 Civil Procedure Act 2005 (NSW) – prior to the hearing date, the plaintiff seeks to withdraw on the basis of fundamental misapprehension of the legal issues by her former counsel – whether plaintiff should be permitted to withdraw - whether order “entered” – whether unentered order should be set aside – order entered but other issues referred to trial judge – observations as to the correct system of electronic entry of orders on JusticeLink
Legislation Cited:	Civil Liability Act 2002 (NSW), s 30 Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 61, 62, 63, 73, 75, 76, 77 and 133 District Court Act 1973 (NSW) District Court Rules 1973 (NSW) Motor Accidents Compensation Act 1999 (NSW), ss 7K and 7L Uniform Civil Procedure Rules 2005 (NSW), Part 3, Part 39, Part 40; rr 28.2, 36.1A, 36.4, 36.11 and 36.15
Cases Cited:	Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304 Consolidated Lawyers Ltd v Aby-Mahmood [2016] NSWCA 4 Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245 Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542 Dimarti v Dimarti [2015] NSWSC 97 Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 Futhem Pty Ltd v Mills [2012] NSWDC 127 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342 Mills v Futhem Pty Ltd (2011) 81 NSWLR 538; [2011] NSWCA 252 Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687 New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950 Nominal Defendant v Livaja [2011] NSWCA 121 Palmer v Clarke (1989) 19 NSWLR 158 Permanent Trustee Company Limited v Mills [2007] NSWSC 336 S Hoffnung & Co Ltd v Hesky [1977] 2 NSWLR 669 Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 Wentworth v Rogers [2002] NSWSC 921