Mannall v Howard - [2019] ACTSC 112

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mannall v Howard
Citation:	[2019] ACTSC 112
Hearing Date:	29 April 2019
DecisionDate:	29 April 2019
Reasons Date:	30 April 2019
Before:	Mossop J
Decision:	Leave granted for second defendant to file an Amended Defence
Catchwords:	PRACTICE AND PROCEDURE – PLEADINGS – Application to file an Amended Defence – proposed amendment made late in proceedings – leave to make amendment granted
Legislation Cited:	Road Transport (Third-Party Insurance) Act 2008 (ACT), s 7 Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 44, 45, 45(4)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Insurance Australia Ltd v Mannall [2017] ACTSC 368 Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2000] NSWSC 753 Tinworth v WV Management Pty Ltd [2009] VSC 552
Parties:	David Mannall (Plaintiff) Malcolm Howard (First Defendant) Insurance Australia Limited t/as NRMA Insurance (Second Defendant)
Representation:	Counsel C Bridge SC with W Sharwood (Plaintiff) H Chiu (First Defendant) GM Watson SC with VM Heath (Second Defendant)
Solicitors Sneddon Hall & Gallop (Plaintiff) ACT Government Solicitor (First Defendant) Moray & Agnew (Second Defendant)
File Number:	SC 468 of 2017

MOSSOP J:

Introduction

Yesterday afternoon I granted leave to the second defendant to file an Amended Defence. These are my reasons for doing so.

The proceedings involve a claim for personal injury by the plaintiff, Mr Mannall, against the first defendant, Mr Howard, and the second defendant, Mr Howard’s third-party insurer, Insurance Australia Ltd trading as NRMA Insurance (NRMA). NRMA has filed a Defence denying liability to indemnify Mr Howard.

In the Defence that had been filed the denial of indemnity was because it was said that the incident giving rise to Mr Mannall’s injuries was not a motor accident as defined in s 7 of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (RTTPI Act). The proposed amendment raised the operation of ss 44 and 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Section 44 provides that subject to s 45, “an action or other proceeding for damages does not lie against … a Commonwealth authority … or an employee in respect of … an injury sustained by an employee in the course of his or her employment”. It is likely to be uncontroversial that the Australian Capital Territory is a Commonwealth authority and that the first defendant is an employee for the purposes of this section. Section 45 permits an election in writing that permits a claim for damages to be made against the Commonwealth authority or employee but imposes limitations on the damages that may be recovered. The operation of s 44 of the SRC Act was raised by the Defence of the first defendant in a manner which assumed that an action might be available if it arose as a result of a motor accident as defined in s 7 of the RTTPI Act, but was otherwise barred by s 44 of 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.

Continue reading Mannall v Howard

Details

AGLC: Mannall v Howard [2019] ACTSC 112
Case: [2019] ACTSC 112
Decision Date: 29 April 2019

CaseChat Overview and Summary

The case of Mannall v Howard involved a dispute between the plaintiff, Mannall, and the second defendant, Howard, over a claim for damages. The application before the court was for leave to file an amended defence by the second defendant, who had proposed the amendment late in the proceedings. The court was required to determine whether the lateness of the application and the potential prejudice to the plaintiff justified granting leave to file an amended defence.

The central issue before the court was whether the second defendant's application for leave to file an amended defence should be granted, considering the late stage of the proceedings and the potential prejudice to the plaintiff. The court had to weigh the principle that amendments to pleadings should be allowed to ensure that disputes are determined on their merits against the need to maintain procedural fairness and avoid unnecessary delay or prejudice. The court considered the circumstances of the case, including the reasons for the delay, the nature of the proposed amendment, and the potential impact on the plaintiff. The court also took into account the second defendant's explanation for the delay and the likelihood that the amendment would lead to a just resolution of the dispute.

The court concluded that the second defendant's application for leave to file an amended defence should be granted. The court found that while the application was made late in the proceedings, the reasons for the delay were reasonable and the proposed amendment was significant in addressing the merits of the case. The court was satisfied that the potential prejudice to the plaintiff could be mitigated, and that granting leave would not result in an unfair advantage to the second defendant. The court emphasised the importance of ensuring that disputes are determined on their merits and that procedural rules should be applied flexibly to achieve this outcome.

Accordingly, the court granted leave for the second defendant to file an amended defence, allowing the proceedings to continue with the amended pleadings. The court's decision reflects a balanced approach to the principles of procedural fairness and the resolution of disputes on their merits, recognising the importance of ensuring that the legal process serves its intended purpose.

Orders

Orders of the court

Leave granted for second defendant to file an Amended Defence

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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