Norris v Pedder (No 2) - [2014] TASSC 29

[2014] TASSC 29

COURT: SUPREME COURT OF TASMANIA

CITATION: Norris v Pedder (No 2) [2014] TASSC 29

PARTIES:  NORRIS, Robert James
  v
  PEDDER, John
  MOORE, Francis trading as Archer Bushby

FILE NO: 105/2011
JUDGMENT

APPEALED FROM: Norris v Pedder [2014] TASSC 10

DELIVERED ON:  30 May 2014
DELIVERED AT:  Hobart
HEARING DATE:  19 May 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Amendments – Defence – Amendments not obviously futile.

Supreme Court Rules 2000 (Tas), r427.
Horton v Jones (No 2) (1939) 39 SR(NSW) 305; Commissioner for Railways v Bilewicz (1962) 80 WN(NSW) 790; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26, followed.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
           Appellant/Plaintiff:  T D Cox
           Respondents/Defendants:            S B McElwaine SC
Solicitors:
           Appellant/Plaintiff:  Slater & Gordon
           Respondents/Defendants:            Shaun McElwaine + Associates

Judgment Number: [2014] TASSC 29
Number of paragraphs: 19

Serial No 29/2014
File No 105/2011

ROBERT JAMES NORRIS v JOHN PEDDER and FRANCIS MOORE
trading as ARCHER BUSHBY (No 2)

REASONS FOR JUDGMENT BLOW CJ

30 May 2014

This is an appeal from an order of Holt AsJ granting the respondents leave to amend their defence so as to rely on the proportionate liability provisions of the Civil Liability Act 2002: Norris v Pedder [2014] TASSC 10.
The appellant, Robert Norris, is the plaintiff in an action for damages against two solicitors – John Pedder, the first defendant, and his employer Francis Moore, the second defendant, who is the proprietor of a legal practice named Archer Bushby. The appellant was injured in a motor vehicle accident on 4 November 2004. The limitation period for bringing an action for damages in respect of his injuries was a period of three years from that date: Limitation Act 1974, s5(1). He did not bring an action for damages within that period. On 25 August 2008, he commenced such an action against a defendant who was alleged to have driven a vehicle that collided with him. An application for an extension of time under s5(4) of the Limitation Act was filed on 5 March 2009, but that application was dismissed by Crawford CJ: Norris v McGeachy [2009] TASSC 10. An appeal to the Full Court was unsuccessful: Norris v McGeachy [2010] TASFC 4. In 2011 the appellant brought this action against the respondents, his former solicitors, claiming damages for economic loss as a result of him losing the chance of pursuing a claim for damages in respect of the injuries that he suffered as a result of the 2004 accident. The respondents are defending that action.
The application to amend their defence so as to rely on the proportionate liability provisions of the Civil Liability Act was made in November 2013 and, as I have said, subsequently granted. The appellant contends that the learned associate judge should not have granted the application…

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 Norris v Pedder (No 2)

Details

AGLC: Norris v Pedder (No 2) [2014] TASSC 29
Case: [2014] TASSC 29
Decision Date: 30 May 2014

CaseChat Overview and Summary

The case of Norris v Pedder (No 2) involved the plaintiff, Norris, and the defendant, Pedder, in a legal dispute heard by the Supreme Court of Tasmania. The matter centred on the issue of amendments to the defence filed by the defendant, Pedder, in response to the plaintiff's claim. The plaintiff sought to strike out the amended defence on the grounds that it was obviously futile. The court was required to determine whether the amendments to the defence were indeed obviously futile and, if so, whether they should be struck out under the relevant procedural rules.

The legal issue before the court was whether the amendments made by the defendant constituted an obviously futile defence under the Supreme Court Rules of Court. The court had to consider the principles and criteria established in relevant case law and legal texts to assess the obvious futility of the amended defence. The court needed to determine whether the amendments introduced new defences or substantially altered the defendant's case in a manner that would not withstand the scrutiny of the court, thus rendering them obviously futile.

In delivering its judgment, the court found that the amendments made by the defendant were not obviously futile. The court examined the content and nature of the amendments and concluded that they introduced new defences that were not implausible or without merit. The court held that the amendments did not meet the threshold of being obviously futile, as they could potentially have a significant impact on the outcome of the case. Consequently, the court denied the plaintiff's application to strike out the amended defence. The court's decision was based on a detailed analysis of the procedural rules and the criteria for determining obvious futility in the context of the amendments made by the defendant.

Orders