MacDonald v Inglis Equipment Pty Limited - [2017] NSWDC 59

District Court

New South Wales

Medium Neutral Citation: MacDonald v Inglis Equipment Pty Limited [2017] NSWDC 59
Hearing dates: 13 and 14 March 2017
Date of orders: 23 March 2017
Decision date: 23 March 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff’s application for leave to amend the statement of claim dismissed.
(2) Statement of claim struck out and dismissed.
(3) Plaintiff pay defendant’s costs of the application and of the proceedings, with liberty to apply.
(4) Exhibits retained until further order.

Catchwords: TORTS - negligence - motor accident – defendant leased forklift to plaintiff’s employer for five years – plaintiff injured when struck by forklift operated by a fellow employee in the employer’s premises – plaintiff brings proceedings against defendant on the basis that his fellow employee was the defendant’s servant or agent - whether the defendant had parted with possession of the forklift for the purposes of Motor Accidents Compensation Act 1999 (NSW) s 4(1)(b) - whether defendant “entitled to immediate possession of the vehicle” – defendant not in possession of forklift
PRACTICE AND PROCEDURE – application under s 65 Civil Procedure Act 2005 (NSW) to amend statement of claim to plead defendant’s failure to repair or negligent repair of forklift – whether proposed amendment based on the same (or substantially the same) facts as those giving rise to the currently pleaded cause of action – prejudice, delay and discretion issues – application for leave to amend refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 65
Motor Accidents Compensation Act 1999 (NSW), ss 3, 3B, 4, 10A and 112
Motor Accidents Compensation Regulation 2015 (NSW), r 20(e)(i)
Road Transport Act 2013 (NSW), s 4(1)
Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited: Bon Arthur Transport Pty Ltd (in liq) v Caruana [2013] NSWCA 101
Ewing v Times Newspapers Ltd [2011] NIQB 63
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Greenwood v Papademetri [2007] NSWCA 221
H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181
O’Dwyer v Chief Constable of the RUC [1997] NI 403
Perera v Gemworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19
Riverina Wines Pty Ltd v Tetra Pak Marketing Pty Ltd [2007] NSWSC 1014
Szanto v Bainton [2011] NSWSC 985
Treadtel International Pty Ltd v Cocco [2016] NSWCA 360
WorkPac Pty Ltd v Thearle [2016] NSWCA 303
Younan v Nationwide News Pty Ltd [2013] NSWCA 335
Category: Principal judgment
Parties: Plaintiff: Graham MacDonald
Defendant: Inglis Equipment Pty Limited
Representation:
Counsel:
Plaintiff: Mr C Hart
Defendant: Mr J Sleight
Solicitors:
Plaintiff: Michael Evers & Co
Defendant: Gillis Delaney Lawyers

File Number(s): 2016/218102
Publication restriction: None

Judgment

The application before the court

By notice of motion filed on 23 February 2017, the defendant brings an application for summary dismissal of these proceedings, seeking the following orders:

The proceedings be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules2005 (NSW).

The plaintiff to pay the defendant’s costs of the motion.

The plaintiff to pay 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.

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Details

Case: [2017] NSWDC 59
Decision Date: 23 March 2017

CaseChat Overview and Summary

The plaintiff, MacDonald, brought proceedings against Inglis Equipment Pty Limited, alleging that the defendant was negligent in leasing a forklift to the plaintiff's employer for a period of five years. The plaintiff was injured when struck by a forklift operated by a fellow employee on the employer's premises. MacDonald argued that Inglis Equipment was liable for the negligence of its servant or agent, seeking to hold the defendant accountable for the accident.

The primary legal issues before the court were whether Inglis Equipment had parted with possession of the forklift for the purposes of section 4(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) and whether Inglis Equipment was entitled to immediate possession of the vehicle. Inglis Equipment contended that it had not parted with possession of the forklift as it was not in possession of it at the time of the accident.

The court held that Inglis Equipment had not parted with possession of the forklift, as it was not in possession of the vehicle at the time of the accident. The court further found that Inglis Equipment was not entitled to immediate possession of the vehicle, as it had leased the forklift to the plaintiff's employer. Therefore, the court held that Inglis Equipment was not liable for the negligence of its servant or agent. The court also dismissed the plaintiff's application to amend the statement of claim to plead the defendant's failure to repair or negligent repair of the forklift, finding that the proposed amendment was not based on the same facts as the currently pleaded cause of action.

The court dismissed the plaintiff's application for leave to amend the statement of claim and struck out and dismissed the statement of claim. The plaintiff was ordered to pay the defendant's costs of the application and of the proceedings, with liberty to apply. The exhibits were retained until further order.

Orders

Orders of the court

(1) Plaintiff’s application for leave to amend the statement of claim dismissed.

(2) Statement of claim struck out and dismissed.

(3) Plaintiff pay defendant’s costs of the application and of the proceedings, with liberty to apply.

(4) Exhibits retained until further order.

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.

Medium Neutral Citation:	MacDonald v Inglis Equipment Pty Limited [2017] NSWDC 59
Hearing dates:	13 and 14 March 2017
Date of orders:	23 March 2017
Decision date:	23 March 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s application for leave to amend the statement of claim dismissed. (2) Statement of claim struck out and dismissed. (3) Plaintiff pay defendant’s costs of the application and of the proceedings, with liberty to apply. (4) Exhibits retained until further order.
Catchwords:	TORTS - negligence - motor accident – defendant leased forklift to plaintiff’s employer for five years – plaintiff injured when struck by forklift operated by a fellow employee in the employer’s premises – plaintiff brings proceedings against defendant on the basis that his fellow employee was the defendant’s servant or agent - whether the defendant had parted with possession of the forklift for the purposes of Motor Accidents Compensation Act 1999 (NSW) s 4(1)(b) - whether defendant “entitled to immediate possession of the vehicle” – defendant not in possession of forklift PRACTICE AND PROCEDURE – application under s 65 Civil Procedure Act 2005 (NSW) to amend statement of claim to plead defendant’s failure to repair or negligent repair of forklift – whether proposed amendment based on the same (or substantially the same) facts as those giving rise to the currently pleaded cause of action – prejudice, delay and discretion issues – application for leave to amend refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 65 Motor Accidents Compensation Act 1999 (NSW), ss 3, 3B, 4, 10A and 112 Motor Accidents Compensation Regulation 2015 (NSW), r 20(e)(i) Road Transport Act 2013 (NSW), s 4(1) Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited:	Bon Arthur Transport Pty Ltd (in liq) v Caruana [2013] NSWCA 101 Ewing v Times Newspapers Ltd [2011] NIQB 63 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Greenwood v Papademetri [2007] NSWCA 221 H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 O’Dwyer v Chief Constable of the RUC [1997] NI 403 Perera v Gemworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Riverina Wines Pty Ltd v Tetra Pak Marketing Pty Ltd [2007] NSWSC 1014 Szanto v Bainton [2011] NSWSC 985 Treadtel International Pty Ltd v Cocco [2016] NSWCA 360 WorkPac Pty Ltd v Thearle [2016] NSWCA 303 Younan v Nationwide News Pty Ltd [2013] NSWCA 335
Category:	Principal judgment
Parties:	Plaintiff: Graham MacDonald Defendant: Inglis Equipment Pty Limited
Representation:	Counsel: Plaintiff: Mr C Hart Defendant: Mr J Sleight Solicitors: Plaintiff: Michael Evers & Co Defendant: Gillis Delaney Lawyers
File Number(s):	2016/218102
Publication restriction:	None