Patrick Lyons v Dennis Labathas - [2010] ACTSC 93

PATRICK LYONS v DENNIS LABATHAS & ORS
[2010] ACTSC 93 (3 September 2010)

APPEAL – appeal from interlocutory decision of the Master – decision refusing the third defendant’s application to set aside an order made by the acting Deputy Registrar – order of the acting Deputy Registrar allowing joinder of second and third defendants – whether substantial injustice caused to the third defendant – whether the third defendant is entitled ex debito justitiae to have order set aside – whether Master erred in the exercise of his discretion – appeal dismissed.
PRACTICE AND PROCEDURE – joinder of defendant – joined defendant not served personally – r 1450 of Court Procedure Rules 2006 (ACT) – whether joinder is a nullity or an irregularity – limitation period expiring subsequent to joinder – joinder declared valid.

Supreme Court Act 1933 (ACT) s 9
Court Procedure Rules 2006 (ACT) rr 40, 111, 220, 223, 230, 504, 1450 , 5013, 6008
Court Procedures Act 2004 (ACT) s 68
Civil Law (Wrongs) Act 2002 (ACT) s 51

House v The King (1936) 55 CLR 499
Martin v NRMA Insurance Ltd [1998] ACTSC 237 (12 June 1998)

Stelmag Pty Ltd v Tifferley Manufacturing Pty Ltd and Robert John King and
Susan Rosalie King [2003] ACTSC 49 (18 June 2003)
Contender 1 Ltd v LEP International Pty Ltd (1988) 82 ALR 394.

Craig v Kanssen [1943] 1 KB 256
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Daniels Corporation International Pty Ltd v Australian Competition and Consumer
Commission (2002) 213 CLR 543
Cameron v Cole (1944) 68 CLR 571
Re Pritchard [1963] 1 Ch 502
Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729
Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd and Others (1989) 17 NSWLR 734

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SC 212 of 2008

Judge: Gray J
Supreme Court of the ACT

Date: 3 September 2010

IN THE SUPREME COURT OF THE     )
  )          No. SC 212 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PATRICK LYONS
Appellant

AND:DENNIS LABATHAS
First Respondent

AND:SPORTS CENTRES AUSTRALIA PTY LIMITED (ACN 096 066 901) t/as CANBERRA INTERNATIONAL SPORTS & AQUATIC CENTRE (CISAC)
Second Respondent

AND: THE CLUB GROUP PTY LIMITED (ACN 106 378 947)
Third Respondent

ORDER

Judge:  Gray J
Date:  3 September 2010
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed except as to the order as to costs;

The appeal be upheld as to the cost order of the Master of 27 March 2009 and that matter be remitted to the Master for his determination;

The costs of the appeal be apportioned as to the appellant who is to pay 90% of those costs and the first respondent 10%.

This is an appeal pursuant to s 9(2)(a) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) against a decision of Master Harper,…

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: [2010] ACTSC 93
Decision Date: 3 September 2010

CaseChat Overview and Summary

The appeal in Patrick Lyons v Dennis Labathas involved the third defendant, Dennis Labathas, contesting an interlocutory decision by the Master. The dispute revolved around the validity of an order made by the acting Deputy Registrar, which permitted the joinder of the second and third defendants. Labathas argued that the joinder was invalid as he had not been personally served, and that the Master had erred in his discretion by not setting aside the order, which he claimed would cause him substantial injustice. The appeal questioned whether the Master's decision was correct, particularly regarding the application of the Court Procedure Rules 2006 (ACT) and the impact of the joinder on the limitation period.

The court was tasked with determining the legal implications of the joinder of the second and third defendants, particularly since Labathas was not personally served. The appeal hinged on whether the joinder was a nullity or an irregularity, and if the Master had the authority to set aside the order under the circumstances. The court had to consider the procedural fairness and whether the failure to serve Labathas personally rendered the joinder invalid. Additionally, the court had to examine whether the limitation period that expired post-joinder had any bearing on the validity of the joinder itself.

The court found that the joinder was not a nullity but rather an irregularity. Despite Labathas not being served personally, the court ruled that the joinder was valid and did not cause substantial injustice. The court concluded that the Master did not err in his exercise of discretion, and the appeal was dismissed. However, the court did uphold the appeal regarding the costs order of the Master, directing that the matter be remitted to the Master for his determination. The court ordered that the costs of the appeal be apportioned, with the appellant paying 90% and the first respondent 10%.

Orders

Orders of the court

The appeal be dismissed except as to the order as to costs; 2. The appeal be upheld as to the cost order of the Master of 27 March 2009 and that matter be remitted to the Master for his determination; 3. The costs of the appeal be apportioned as to the appellant who is to pay 90% of those costs and the first respondent 10%.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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