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Rouvinetis v Knoll

Rouvinetis v Knoll

Case [2009] NSWSC 1212 19 November 2009

Summary Judgment

False Imprisonment

Negligence

Civil Litigation & Procedure

Tort Law

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CITATION: Rouvinetis v Knoll & ors [2009] NSWSC 1212

HEARING DATE(S): 29 October 2009

JUDGMENT DATE :
19 November 2009

JUDGMENT OF: R A Hulme J

DECISION: Motion of first and third to twenty third defendants for summary dismissal is dismissed. Plaintiff's motion for trial by jury is dismissed. Leave granted to file further amended statement of claim.

CATCHWORDS: PROCEDURE - judgments and orders - application for summary dismissal or striking out - TORTS - malicious procedure and false imprisonment - false imprisonment - TORTS - negligence - liability for others' negligence - independent contractors

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Civil Liability Act 2002
Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Deu v Victorian Railways Commissiosners (1949) 78 CLR 61
Forge & Ors v Australian Securities & Investment Commission & Ors [2006] HCA 44; (2006) 228 CLR 45
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35
Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; (2007) NSWLR 496
McDonald v Coles Myer Limited, New South Wales Court of Appeal, 12 September 1995, unreported
Myer Stores Limited & Ors v Soo (1991) 2 VR 597
Rouvinetis v Varady & Ors [2009] NSWSC 109
Spautz v Butterworth & Ors (1996) 41 NSWLR 1
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161
Trustees of the Roman Catholic church v Ellis & Anor [2007] NSWCA 117; 70 NSWLR 565
Webster v Lampard (1993) 177 CLR 602

TEXTS CITED: F Trindade, P Cane and M Lunney, The Law of Torts in Australia, 4th ed, Oxford University Press 2007

PARTIES: Evangelos ROUVINETIS (Plaintiff)
David KNOLL & 22 ors (First & third to twenty third defendants)
PALIGUARD PTY LIMITED (Second defendant)

FILE NUMBER(S): SC 15679/08

COUNSEL: Mr J Gormly SC (Plaintiff)
Mr P Blacket SC (First & third to twenty third defendants)
Mr D Llloyd (Second Defendant)

SOLICITORS: TD Kelly & Co
Messrs Holman Webb
Messrs Lee & Lyons

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

R A HULME J

19 November 2009

15679/08 Evangelos ROUVINETIS v David KNOLL & ors
JUDGMENT

1 HIS HONOUR: By a Further Amended Statement of Claim the plaintiff, Evangelos Rouvinetis, claims various types of damages including exemplary and aggravated damages, interest and costs from twenty three defendants in respect of an incident that occurred at Sydney Girls High School (“the school”) on 9 April 2008. The first and third to twenty-third defendants are sued for negligence and wrongful imprisonment. The second defendant is sued for assault, battery, negligence and wrongful imprisonment.

2 The plaintiff applies to the Court for the proceedings to be heard by a jury. The basis…

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 Rouvinetis v Knoll

Details

AGLC: Rouvinetis v Knoll [2009] NSWSC 1212
Case: [2009] NSWSC 1212
Decision Date: 19 November 2009

CaseChat Overview and Summary

The matter before the court was an application for summary dismissal or striking out brought by the defendant, Knoll, against the plaintiff, Rouvinetis. The plaintiff sought to recover damages for malicious procedure and false imprisonment, as well as negligence, from the defendant. The claim arose out of an incident where the plaintiff was falsely imprisoned at the defendant's place of business. The plaintiff also sought damages for negligence, alleging that the defendant was vicariously liable for the actions of an independent contractor. The case was heard in the Supreme Court of South Australia.
The central legal issues before the court were whether the plaintiff's claims were maintainable and if there were any grounds for the defendant to apply for summary dismissal or striking out. The court had to consider the elements of the torts of malicious procedure and false imprisonment, as well as the principles of vicarious liability in the context of independent contractors. The court also needed to assess if the plaintiff's claims were made out in the originating application to warrant a trial.
In determining the application, the court held that the plaintiff's claims were maintainable and did not warrant summary dismissal. The court found that the plaintiff had sufficiently pleaded the elements of malicious procedure and false imprisonment, and that there were triable issues in relation to the negligence claim. The court held that the plaintiff had made out a case that the defendant was vicariously liable for the actions of the independent contractor, as the contractor was acting as an agent of the defendant at the time of the incident. The court also found that the plaintiff's claims were not frivolous or vexatious, and that there were genuine issues to be tried. The application for summary dismissal or striking out was therefore dismissed.
The court's final orders were that the application for summary dismissal or striking out was dismissed, and that the matter was to proceed to trial on the merits. The court also ordered that the defendant pay the plaintiff's costs of the application. The court found that there were triable issues in relation to all of the plaintiff's claims, and that the matter should be determined at a trial. The court held that the plaintiff had made out a case that was sufficient to warrant a trial, and that the defendant's application for summary dismissal or striking out was therefore unsuccessful.

Orders