Pandolfi v Carlsund - [2012] NTSC 36

Pandolfi v Carlsund [2012] NTSC 36
PARTIES:PANDOLFI, Stephen
v

CARLSUND, Carl

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING
ORIGINAL JURISDICTION

FILE NO:No 79 of 2009 (20918100)
FORWARDED TO PARTIES:          5 June 2012
HEARING DATES:  2 March 2012
JUDGMENT OF:  BLOKLAND J
CATCHWORDS:

PROCEDURE – Anti Suit Injunction – Inherent Power of the Court – Preventing Commencement of Action on Same Subject Matter – Relief Granted
Motor Accidents (Compensations) Act (1979) s 5(6),
Supreme Court Act s 69
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; applied

DL & JE Graetz v NTHG Pty Ltd [2002] NTCA; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; followed
Anglo Australian Foods v Von Planto and Others (1988) 20 FCR 34; Harding v Wealands [2006] UKHL 32; Imbree v McNeilly (2008) 236 CLR 510; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; referred to
REPRESENTATION:
Counsel:
Applicant/Defendant:                 Mr Livesey QC, Ms Osborne
Respondent/Plaintiff:                 N/A
Solicitors:
Applicant/Defendant:                 Hunt and Hunt Lawyers
Respondent/Plaintiff:                 N/A
Judgment category classification:   B
Judgment ID Number:  BLO 1206
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Pandolfi v Carlsund [2012] NTSC 36

No. 78 of 2009 (20918100)
BETWEEN:

STEPHEN PANDOLFI

Applicant

AND:

CARL CARLSUND

Respondent

CORAM: BLOKLAND J
REASONS FOR RULING
(Delivered 5 June 2012)
Introduction

Orders were made on 2 March 2012 restraining the plaintiff from commencing or continuing proceedings in the United Kingdom for damages arising out of a motor vehicle accident that occurred in 2006 in the Northern Territory.[1] The substantive proceedings were filed in this Court on 27 May 2009.
Brief oral reasons were given at the time of making the orders. Given the orders were made after the plaintiff’s original Northern Territory (local) solicitors had withdrawn from the record but prior to engaging his current solicitors,[2] it is appropriate to publish reasons. These reasons are intended to be read co-extensively with the oral reasons previously given.
Background
Some history is required to appreciate why the orders were made. The filed and served material I accepted included the following: [3]
·Proceedings were commenced in this Court on 27 May 2009 on the filing of a writ endorsed with both a Statement of Claim (Part 2) and a Statement that the place of trial sought was Darwin (Part 3).
·The substantive proceedings seek damages in respect of injuries sustained in an accident allegedly as a result of the defendant’s negligence. The date of the accident is 31 May 2006.
·Since the proceedings were commenced, both parties have been engaged, at some stages deeply engaged, in the interlocutory processes of this Court.
·The defendant’s solicitor believes the matter would be ready for trial this year.
·The plaintiff resides in the United Kingdom and has been receiving medical care.
·On 16 September 2010 the plaintiff’s local solicitor advised the Registrar of this Court that after conference with Senior Counsel…

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 Pandolfi v Carlsund

Details

AGLC: Pandolfi v Carlsund [2012] NTSC 36
Case: [2012] NTSC 36
Decision Date: 05/06/2012

CaseChat Overview and Summary

The case of Pandolfi v Carlsund involved the plaintiff seeking damages for injuries sustained in an accident allegedly due to the defendant's negligence. The plaintiff, residing in the United Kingdom, originally filed proceedings in the Northern Territory Supreme Court, which was contested by the defendant. The primary dispute was whether the plaintiff should be granted an anti-suit injunction to prevent the commencement of proceedings in the United Kingdom.

The key legal issues the court had to decide were whether the Northern Territory Supreme Court had the inherent power to grant an anti-suit injunction, and whether such an injunction would be appropriate given the circumstances of the case. The court had to balance the inherent jurisdiction to prevent parallel litigation with the principle of forum non conveniens, which examines the appropriateness of a forum for the litigation of a particular matter.

The court reasoned that the inherent power of the court to grant an anti-suit injunction was supported by both the court's inherent jurisdiction and statutory authority under s 69 of the Supreme Court Act. The court found that the Northern Territory was not a clearly inappropriate forum for the proceedings, considering the accident occurred in the Northern Territory, and there were strong connections to witnesses and expert evidence in Australia. The court granted the anti-suit injunction to prevent the plaintiff from commencing proceedings in the United Kingdom until the matter in the Northern Territory was resolved. The court believed this was necessary to ensure the effective exercise of its jurisdiction and to prevent parallel litigation which could lead to conflicting judgments.

The final orders of the court included the grant of an anti-suit injunction, prohibiting the plaintiff from commencing proceedings in the United Kingdom until the matter in the Northern Territory was resolved. The plaintiff was also required to provide an undertaking not to commence proceedings in the United Kingdom until further order of the court.

Orders

Orders of the court

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Background

Background to the litigation

Brief oral reasons were given at the time of making the orders. Given the orders were made after the plaintiff’s original Northern Territory (local) solicitors had withdrawn from the record but prior to engaging his current solicitors,[2] it is appropriate to publish reasons. These reasons are intended to be read co-extensively with the oral reasons previously given.Background Some history is required to appreciate why the orders were made. The filed and served material I accepted included the following: [3]·Proceedings were commenced in this Court on 27 May 2009 on the filing of a writ endorsed with both a Statement of Claim (Part 2) and a Statement that the place of trial sought was Darwin (Part 3).·The substantive proceedings seek damages in respect of injuries sustained in an accident allegedly as a result of the defendant’s negligence. The date of the accident is 31 May 2006.·Since the proceedings were commenced, both parties have been engaged, at some stages deeply engaged, in the interlocutory processes of this Court.·The defendant’s solicitor believes the matter would be ready for trial this year.·The plaintiff resides in the United Kingdom and has been receiving medical care.·On 16 September 2010 the plaintiff’s local solicitor advised the Registrar of this Court that after conference with Senior Counsel “an issue” had been raised and some time was required to resolve that issue. ·The Registrar of this Court was told at a directions hearing on 8 February 2011 by the plaintiff’s then Counsel that the plaintiff had engaged solicitors in the United Kingdom. An issue was raised about whether the plaintiff was a person under a disability for the purposes of Order 15 of the Supreme Court Rules. Solicitors in the United Kingdom have continued to be engaged since that time.·The Registrar made orders that any application to appoint a litigation guardian under Order 15 of the Supreme Court Rules be made within four weeks; no application has ever been made.·Various interlocutory processes were undertaken including agreements in relation to the cost of an assessment and the filing and serving of amended pleadings.·On 5 December 2011 the then local solicitors for the plaintiff advised for the first time that the plaintiff would soon make an application for an extension of time to commence proceedings in the United Kingdom. A settlement conference that had been listed in this Court for 8 December 2011 was consequently adjourned, with costs reserved.·The application for these orders was filed on 14 December 2011. An undertaking was made by the plaintiff not to commence proceedings in the United Kingdom, initially until close of business on 24 January 2012 or until the matter could be conveniently heard.[4]·Prior to the matter being heard on 2 March 2012, (this was an agreed mutually convenient time), the previous local solicitors ceased to act for the plaintiff.·The plaintiff had the assistance of local solicitors since about May 2009. The original local solicitors were successful in obtaining leave to withdraw from acting for the plaintiff on 1 March 2012.[5] The reason given for the plaintiff’s original local solicitors seeking leave to withdraw was that the plaintiff’s solicitors in the United Kingdom had been retained to advise the plaintiff on whether the local solicitors had acted negligently in failing to advise the plaintiff to commence proceedings on his behalf in the United Kingdom rather than the Northern Territory.[6]Principles Relevant to the Relief Sought – an anti suit injunction

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I am confident the inherent power of this Court authorises the grant of the orders sought. Additionally s 69 Supreme Court Act provides a general legislative basis for granting injunctive relief. Further, the granting of such an order in my view does not go beyond what is reasonable protection or enforcement of the jurisdiction invoked.[13] The order is necessary to enable the Court to effectively exercise its jurisdiction.Particular Considerations on Whether to Grant the Anti-Suit Injunction It is apparent that what underpins the plaintiff’s previously stated desire to commence proceedings in the United Kingdom is advice that ultimately proceedings in the United Kingdom may be more beneficial to him in terms of recovering a higher level of damages. As mentioned, a full consideration of forum non conveniens is not required, however before granting the relief sought this Court should first consider whether it is an appropriate forum in the sense of Voth v Manildra Flour Mills Pty Ltd.[14] Since Voth, it is not necessary to consider which court is the ‘clearly more appropriate forum’ but rather to determine, in this instance, whether this Court is a ‘clearly inappropriate forum’ before granting the order sought. It surely cannot be said that this Court is a clearly inappropriate forum. Liability in negligence, contributory negligence and damages are in issue. The defence pleadings disclose the defendant will plead there was no breach of the standard of care applicable to a driver affected by alcohol. In submissions it has been confirmed the ‘no breach of duty’[15] defence will be an issue. On the issue of contributory negligence, s 5(6) Motor Accidents (Compensation) Act (1979)[16] affects in some part, quantum of damages, (depending on findings made at trial), as it provides that, if a person was not wearing a seat belt at the time of the accident, damages are to be reduced by 25%. It is likely given the approach in Harding v Wealands[17] that if the plaintiff were successful in an action in the United Kingdom, he would not be subject to the s 5(6) Motor Accidents (Compensation) Act restriction. In Harding v Wealands the House of Lords found comparable limitations in the New South Wales Motor Accidents Compensation Act, were procedural and inapplicable in an English court. The law in Australia, (in the context of a federation and the need to give full faith and credit to the laws of different states), has lead to the conclusion that such provisions are substantive.[18] That the proceedings and damages may be regulated in part by statute or indeed by some aspect of the common law does not bear on whether the plaintiff can obtain complete relief. The plaintiff may, in this jurisdiction pursue an action for damages based on negligence. That there may be personal or juridical advantages to the plaintiff in now commencing an action in the United Kingdom does not however mean the Northern Territory is an inappropriate jurisdiction. Relevant connection issues strongly support the appropriateness of this jurisdiction. It is the clearly appropriate forum given: ·The accident giving rise to the proceedings occurred in the Northern Territory.·The Solicitor for the defendant attests to witnesses based in Australia including (10 witnesses regarding the events leading to and surrounding the accident); expert engineering evidence and pharmacological evidence.·The plaintiff chose to issue proceedings in the Northern Territory nominating the place of trial as Darwin.