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Leonard v Pollock

Leonard v Pollock

Case [2012] WASCA 108 21 June 2012

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LEONARD -v- POLLOCK [2012] WASCA 108

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 108
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:17/2011	Heard:	26 MARCH 2012
Coram:	NEWNES JA MURPHY JA	Delivered:	21/06/12
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	ARCHIBALD LEONARD EDITH LEONARD DAVID POLLOCK JAMES POLLOCK ANN KENT DANIELLE KILMURRAY CHRISTOPHER VEITCH
Catchwords:	Practice and procedure Appellants' action struck out as disclosing no cause of action Delay of over three years in filing appeal notice Application for extension of time to appeal dismissed Appeal against dismissal Relevant considerations on application for extension of time No satisfactory explanation for delay No reasonable prospect of success Claim of negligence causing psychiatric injury Family dispute No duty of care owed by respondents Application to admit fresh evidence Relevant principles Fresh evidence irrelevant
Legislation:	Nil
Case References:	CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Girando v Girando (1997) 18 WAR 450, 454 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Shilkin v Taylor [2011] WASCA 255 Simonsen v Legge [2010] WASCA 238 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LEONARD -v- POLLOCK [2012] WASCA 108 CORAM : NEWNES JA

MURPHY JA

HEARD : 26 MARCH 2012 DELIVERED : 21 JUNE 2012 FILE NO/S : CACV 17 of 2011 BETWEEN : ARCHIBALD LEONARD

First Appellant

EDITH LEONARD

Second Appellant

AND

DAVID POLLOCK

First Respondent

JAMES POLLOCK

Second Respondent

ANN KENT

Third Respondent

DANIELLE KILMURRAY

Fourth Respondent

CHRISTOPHER VEITCH

Fifth Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STEVENSON DCJ

File No : CIV 321 of 2007

Catchwords:

Practice and procedure - Appellants' action struck out as disclosing no cause of action - Delay of over three years in filing appeal notice - Application for extension of time to appeal dismissed - Appeal against dismissal - Relevant considerations on application for extension of time - No satisfactory explanation for delay - No reasonable prospect of success - Claim of negligence causing psychiatric injury - Family dispute - No duty of care owed by respondents - Application to admit fresh evidence - Relevant principles - Fresh evidence irrelevant

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant : In person

Second Appellant : In person

First Respondent : Ms F A Stanton

Second Respondent : Ms F A Stanton

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 Leonard v Pollock

Details

AGLC: Leonard v Pollock [2012] WASCA 108
Case: [2012] WASCA 108
Decision Date: 21 JUNE 2012

CaseChat Overview and Summary

The case of Leonard v Pollock involved an appeal by the plaintiffs against the dismissal of their action and the refusal to extend the time to appeal. The plaintiffs sought damages for negligence and psychiatric injury against the defendants, alleging that the defendants' actions in a family dispute caused them harm. The primary judge dismissed the plaintiffs' action as disclosing no cause of action and denied an application to extend the time for appeal due to a delay of over three years in filing the appeal notice. The plaintiffs further sought to introduce fresh evidence, which the court also dismissed.

The legal issues before the court included whether the plaintiffs' action disclosed a cause of action for negligence and psychiatric injury, the considerations relevant to granting an extension of time to appeal, and the principles governing the admissibility of fresh evidence. The court examined the plaintiffs' reasons for the delay in filing the appeal notice and the prospects of success of the appeal. Additionally, the court considered the applicability of the duty of care in the context of the family dispute and the relevance and admissibility of the proposed fresh evidence.

In addressing these issues, the court found that the plaintiffs' action did not disclose a cause of action as the defendants owed no duty of care in the circumstances. Regarding the extension of time to appeal, the court held that the plaintiffs provided no satisfactory explanation for the significant delay and no reasonable prospect of success on appeal. The court also determined that the proposed fresh evidence was irrelevant and inadmissible. Consequently, the appeal was dismissed, and no orders were made in favour of the plaintiffs.

The court's reasoning and findings led to the dismissal of the appeal and the refusal to grant an extension of time to appeal. The plaintiffs' action was struck out as disclosing no cause of action, and their application to admit fresh evidence was denied. The final orders were that the appeal be dismissed, and no orders were made in favour of the plaintiffs.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Leonard v Pollock [2012] WASCA 108

Most Recent Citation

Corruption and Crime Commission v Stokes [2013] WASC 282

Cases citing this decision · 2 of 2 shown

Harding v Raymond
[2024] QCAT 407 Para 1

…red from, or was treated for, a recognised psychiatric injury, in the form of a disease. I reject this component of her claim. [30] Leonard v Pollock [2012] WASCA 108, and the cases collected in Stickley A, Australian Torts Law , (3rd edn, 2013), LexisNexis Butterworths, Sydney, paragraphs 12.15-12.16.…
Corruption and Crime Commission v Stokes
[2013] WASC 282 Para 3

…en explained and defined. A recent example of this is Rinaldi v The State of Western Australia [2007] WASCA 53 [78]. As was said in Leonard v Pollock [2012] WASCA 108 [46]: A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provid…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Shilkin v Taylor
[2011] WASCA 255

…[1998] HCA 27; (1998) 195 CLR 516 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Shilkin v Taylor [2011] WASCA 255 Simonsen v Legge [2010] WASCA 238 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317…
Simonsen v Legge
[2010] WASCA 238

…Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Shilkin v Taylor [2011] WASCA 255 Simonsen v Legge [2010] WASCA 238 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317…
City of Canning v Avon Capital Estates (Australia) Ltd
[2009] WASCA 120

…CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Girando v Girando (1997) 18 WAR 45…
Cumins v Deputy Commissioner of Taxation for the Commonwealth of Australia
[2007] WASCA 30

…98] HCA 76; (1998) 197 CLR 172 City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Girando v Girando (1997) 18 WAR 450, 454 Jacka…
Mount Lawley Pty Ltd v Western Australian Planning Commission
[2004] WASCA 149

…Girando (1997) 18 WAR 450, 454 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Shilkin v Taylor [2011] WASCA 255 Simonsen v Legge [2010] WASCA 238 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Tame v New…
Tame v New South Wales
[2002] HCA 35

…WAR 273 Shilkin v Taylor [2011] WASCA 255 Simonsen v Legge [2010] WASCA 238 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317…
Sullivan v Moody
[2001] HCA 59

…stralian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Shilkin v Taylor [2011] WASCA 255 Simonsen v Legge [2010] WASCA 238 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317…
CDJ v VAJ
[1998] HCA 67

…CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Girando v Girando (1997) 18 WAR 450,…
Jackamarra v Krakouer
[1998] HCA 27

…1990] HCA 30; (1990) 93 ALR 479 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Girando v Girando (1997) 18 WAR 450, 454 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Shilkin v Taylor [2011] WASCA 2…
Gallo v Dawson
[1990] HCA 30

…City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Girando v Girando (1997) 18 WAR 450, 454 Jackamarra v Krakouer [1998] HCA 2…
CDJ v VAJ (No 2)
[1998] HCA 76

…CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Girando v Girando (1997) 18 WAR…
[1999] WASCA 32
[1999] WASCA 32

…d [2009] WASCA 120 Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Girando v Girando (1997) 18 WAR 450, 454 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 Mount Lawley Pty Ltd v Western Au…

Legislation cited in this decision · 2

District Court Rules 2005 (WA)
15(2) 1 mention
Supreme Court (Court of Appeal) Rules 2005 (WA)
1 mention