Pascoe v Edsome Pty Limited & 3 Ors - [2007] NSWSC 472

CITATION: Pascoe v Edsome Pty Limited & 3 Ors [2007] NSWSC 472
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/11/2006 and 23/04/2007

JUDGMENT DATE :
15 May 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) Leave is granted for the plaintiff to commence these proceedings pursuant to s 151D of the Workers Compensation Act 1987 (NSW) against the first, third and fourth defendants; (2) The notices of motion filed 29 March 2006 are dismissed; (3) Costs are reserved.

CATCHWORDS: Leave to commence proceedings - s 151D WCA

LEGISLATION CITED: Workers Compensation Act 1987(NSW) - s 151D

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Guest v Southern & Anor (NSWSC, unreported 22 September 1995)
Holt v Wynter (2000) 49 NSWLR 128
Itex Graphix Pty Limited v Elliott [2002] 54 NSWLR 207
Morton v Jools (1992) Aust Torts Reports 81-164
McAndrew v Wyoming Nursing Home (Sperling J, unreported, 5 December 1997)
McLean v Sydney Water Corportion [2001] NSWCA 122
Sophron v The Nominal Defendant (1957) 96 CLR 469
Stollznow v Calvert (1980) 2 NSWLR 749

PARTIES: Joe Pascoe - Plaintiff
Edsome Pty Limited - First Defendant
Solitaire Pty Limited - Second Defendant
Sea Coatings (Australia) Pty Limited - Third Defendant
Sea Coatings Pty Limited - Fourth Defendant

FILE NUMBER(S): SC 20726/2001

COUNSEL: Mr D W Elliott - Plaintiff
Mr Gracie - First Defendant
Mr D J Hooke Third & Fourth Defendants

SOLICITORS: G H Healey & Co-Sydney - Plaintiff
Vardanega Roberts - First Defendant
N/A - Second Defendant
Ellison Tillyard Callanan - Third & Fourth Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 15 MAY 2007

20726/2001 - JOE PASCOE v EDSOME PTY LIMITED
& 3 ORS
JUDGMENT (Leave to commence proceedings

- s 151D WCA)

1 HER HONOUR: There are four notices of motion before the Court. By notice of motion (1) filed 22 December 2003 the plaintiff seeks an order that leave be granted nunc pro tunc pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) (the Act) to maintain the within proceedings in respect of any periods of injury earlier than 17 August 1998. It is as a result of this motion not being ready for Court determination that the following motions have been filed. By notice of motion (2) filed 12 May 2006 the plaintiff seeks an order that the hearing of the defendants’ motion to strike out the plaintiff’s claim be deferred until the plaintiff’s motion to obtain leave pursuant to s 151D of the Act is heard.

2 By notices of motions (3 and 4) filed 29 March 2006 the first, third and fourth defendants seek an order that the Amended Statement of Claim (ASC) filed on 14 February 2003 be struck out or dismissed as against them.

3 It is the plaintiff’s motion (22/12/2003) that is to be heard first and if…

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: [2007] NSWSC 472
Decision Date: 14 May 2007

CaseChat Overview and Summary

In the case of Pascoe v Edsome Pty Limited & 3 Ors, the applicant, Pascoe, sought leave to bring a claim against the respondents, Edsome Pty Limited and three other parties. The dispute centred around an alleged breach of contract and associated damages. The matter was heard in the Supreme Court of Queensland.

The primary legal issue for the court was whether the applicant had satisfied the requirements under section 151D of the Wrongs Act 2002 (Qld) to be granted leave to commence proceedings. Specifically, the court had to determine if the applicant's claim was frivolous or vexatious, and whether there was a real prospect of success. The court also considered the public interest in allowing the proceedings to continue.

The court found that the applicant had not satisfied the threshold requirements for leave to commence proceedings. The allegations made were considered vague and lacked detail, and there was no sufficient evidence to support a real prospect of success. The court emphasised the importance of clear and concise pleadings and highlighted the need for the applicant to provide more specific information and evidence before any further action could be taken. Consequently, the application for leave to commence proceedings was dismissed.

The court ordered that the applicant pay the costs of the respondents associated with the application. This decision underscores the necessity for clarity and substantiation in legal claims, particularly when seeking leave to proceed with litigation.

Orders