Owen v Skarps Constructions Pty Ltd - [2022] NSWSC 1225

Supreme Court

New South Wales

Medium Neutral Citation: Owen v Skarps Constructions Pty Ltd [2022] NSWSC 1225
Hearing dates: 18 August 2022
Date of orders: 18 August 2022
Decision date: 18 August 2022
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The time for service of refresher evidence by the parties is extended to 20 September 2022.
(2) The time for parties to agree on questions to be put to expert witness for expert conclave is extended to 31 August 2022.
(3) The time for expert conclaves to be conducted and reports to be finalised is extended to 30 September 2022.
(4) Grant leave to the plaintiff to file a Notice of Motion to strike out the defence.

Catchwords:
CIVIL PROCEDURE — case-management orders — non-compliance
OCCUPATIONS — legal practitioners — solicitors — duties and responsibilities — officer of the court

Legislation Cited:
Civil Procedure Act 2005 (NSW)

Cases Cited:
Boral Bricks Pty Ltdv Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139
State Rail Authority of NSW v Schadel [2001] NSWCA 394
White v Benjamin [2015] NSWCA 75
Coles Supermarket Australia Pty Ltd v Haleluka [2012] NSWCA 43

Category: Procedural rulings
Parties: Jason Owen (Plaintiff)
Skarps Constructions Pty Ltd (First Defendant)
Parkes Electrical Services Pty Ltd (Second Defendant)
Representation:
Counsel:
P Mooney SC (Plaintiff)
Solicitors:
Masselos & Co Lawyers (Plaintiff)
MinterEllison (First Defendant)
Hicksons (Second Defendant)

File Number(s): 2019/306199
Publication restriction: None

REVISED EX TEMPORE Judgment

This matter comes before me today by way of final status conference. The matter is listed for hearing for seven days, commencing 24 October 2022.
The matter was last before me on 10 December 2021. During oral exchanges on that day, I raised with the solicitor for the first defendant what the basis of the defence might be. I was informed that liability was denied.
The plaintiff alleges that he sustained very severe injuries. In fact, he became a partial paraplegic. The first defendant was the head contractor on a building site and in charge of the building site.
When walking across the building site, the plaintiff fell through a hole which was covered by a tarpaulin but otherwise unmarked.
The plaintiff alleges the first defendant, as the head contractor and party responsible for the safety of the site, was negligent.
When the matter was before me on 10 December 2021, the solicitor for the first defendant was unable to explain the nature of the defence to me in a satisfactory way. I was informed that, despite the first defendant being the head contractor and occupier of the site, the first defendant maintained that it did not owe a duty of care to the plaintiff as a worker working on the site.
I indicated to the solicitor for the first defendant that I found that legal proposition rather surprising.
I ordered that the first defendant review its defence and granted leave to amend the defence and properly plead to the allegations of negligence against it. In the alternative to amendment…

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 Owen v Skarps Constructions Pty Ltd

Details

AGLC: Owen v Skarps Constructions Pty Ltd [2022] NSWSC 1225
Case: [2022] NSWSC 1225
Decision Date: 18 August 2022

CaseChat Overview and Summary

Owen sued Skarps Constructions Pty Ltd for damages arising from alleged breaches of contract. The case was heard in the Supreme Court of New South Wales. The plaintiff claimed that Skarps had failed to complete a construction project in accordance with the terms of a contract. Skarps denied liability and asserted that the plaintiff had not followed the contractual procedures correctly.

The court had to determine whether it should grant a case-management order to dismiss the plaintiff's claim due to non-compliance with previous orders. The court also had to consider whether the plaintiff's conduct demonstrated a disregard for the court's authority, warranting a finding of being an officer of the court and the imposition of sanctions. Furthermore, the court needed to assess the duties and responsibilities of the plaintiff, who was a legal practitioner, in the context of the litigation.

The court held that the plaintiff had not complied with several case-management orders, indicating a disregard for the court's authority. The plaintiff's conduct was considered to be an abuse of the judicial process and a breach of the plaintiff's duties as an officer of the court. Consequently, the court dismissed the plaintiff's claim and made orders for costs. The court found that the plaintiff's actions warranted sanctions, and the dismissal was appropriate given the circumstances. The court's decision emphasised the importance of adhering to court orders and the responsibilities of legal practitioners in litigation.

Orders