O'Sullivan v Bunnings Group Limited - [2023] ACTSC 38

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	O’Sullivan v Bunnings Group Limited
Citation:	[2023] ACTSC 38
Hearing Date:	7 March 2023
DecisionDate:	7 March 2023
Before:	Mossop J
Decision:	1. The application in proceeding dated 3 March 2023 is adjourned to a date to be fixed in accordance with order 2. 2. The application may be listed on 2 days’ notice to the second defendant.
Catchwords:	PRACTICE AND PROCEDURE – FREEZING ORDER – Application made on ex parte basis – property title search discloses that second defendant is a joint tenant of real property – whether there is any evidence of a risk of dissipation of assets – whether it is necessary to hear application on ex parte basis
Legislation Cited:	Legal Profession (Barristers) Conduct Rules 2021 (ACT), r 24 Legal Profession (Solicitors) Conduct Rules 2015 (ACT), r 19.4
Cases Cited:	Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 Chong v Huang [2021] ACTSC 310 Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; 273 ALR 194 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Rudnicki v Adventura One Pty Ltd [2017] ACTSC 89
Texts Cited:	Peter Biscoe, Freezing and Search Orders (LexisNexis Australia, 3^rd ed, 2023)
Parties:	Elizabeth Maree O’Sullivan ( Plaintiff) Bunnings Group Limited ( Defendant) Stephen John McMillan (Second Defendant)
Representation:	Counsel T Gedik ( Plaintiff)
Solicitors Blumers Personal Injury Lawyers ( Plaintiff)
File Number:	SC 81 of 2023

MOSSOP J:

These are my reasons for orders made this morning in relation to an application in proceeding seeking freezing order against the second defendant in personal injury proceedings. The application was made on an ex parte basis.

The plaintiff, Elizabeth Maree O’Sullivan, has sought damages against Bunnings Group Limited and Stephen John McMillan for personal injuries alleged to have arisen out of an assault by the second defendant upon the plaintiff at work on 22 February 2021. An originating claim has been filed and a direction made that it must be served upon the defendants by 14 March 2023. It is listed for a First Directions Hearing under Practice Direction 2 of 2014 on 11 April 2023. The claim against the first defendant is one in negligence arising out of its obligations as the employer of the plaintiff. The claim against the second defendant includes claims based on negligence and battery. The injuries described in the claim are:

injury to right wrist;
injury to right arm and shoulder;
injury to chest;
bruising and cuts to body; and
psychological injury.

Particulars of disabilities are provided in the usual all-encompassing detailed terms.

The affidavit in support of the present application is that of Talia Alice Gedik dated 3 March 2023.

That discloses that she has obtained from the solicitors for the first defendant a title search dated 16 August 2022 for a residential property in Evatt. The second defendant is listed as a joint tenant of the property. On 22 February 2023 a further search…

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: [2023] ACTSC 38
Decision Date

CaseChat Overview and Summary

In the case of O'Sullivan v Bunnings Group Limited, the plaintiff, Elizabeth Maree O’Sullivan, sought a freezing order against the second defendant, Stephen John McMillan, in connection with personal injury proceedings. The application for the freezing order was made on an ex parte basis, and the court was required to determine whether such an order should be granted without prior notice to the second defendant. The court examined the evidence presented, which included a title search indicating the second defendant's ownership of a property jointly held with another individual, and considered the potential value of the plaintiff's claim against the second defendant. The legal issues at hand were whether there was sufficient evidence of a risk of dissipation of assets and whether it was necessary to proceed with the application on an ex parte basis.

The court held that the application for a freezing order should not proceed on an ex parte basis. Firstly, the evidence did not substantiate a significant risk of the second defendant dissipating his assets in a manner that would hinder the court's processes. Secondly, the evidence regarding the potential value of the plaintiff's claim was insufficient to support a claim for damages in the vicinity of $1 million. Lastly, the court found that there was no compelling reason to proceed ex parte, as the lack of evidence of a risk of asset dissipation did not justify bypassing the usual procedures. The court emphasised the need for a solid evidentiary foundation to warrant the imposition of a freezing order, which was not present in this case.

Based on these findings, the court adjourned the application to a date to be fixed, allowing the application to be served on the second defendant and addressed on a contested basis. This decision highlights the importance of providing substantial evidence to support claims of asset dissipation and the necessity of adhering to procedural fairness when considering the imposition of drastic measures such as freezing orders.

The orders made by the court were as follows:

1. The application in proceeding dated 3 March 2023 is adjourned to a date to be fixed in accordance with order 2.
2. The application may be listed on 2 days’ notice to the second defendant.

Orders