SAMWAYS -v- ANSETT AUSTRALIA LTD [2001] WASC 140

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 140
Case No:	CIV:1668/2000	Heard:	25 MAY 2001
Coram:	MASTER SANDERSON	Delivered:	5/06/01
No of pages:	10	Judgment Part:	1 of 1
Result:	Application for summary judgment dismissed Leave to amend indorsement of claim
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Parties:	ALLAN KEITH SAMWAYS ANSETT AUSTRALIA LTD (ACN 004 209 410)
Catchwords:	Practice and procedure Application for summary judgment by defendant Indorsement of claim said to be defective Meaning of "cause of action"
Legislation:	Civil Aviation (Carriers Liability) Act (Clth) 1959
Case References:	Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Hamilton Island Enterprises v Commissioner of Taxation [1982] NSWLR 113 Morgan v Banning (1999) 20 WAR 474 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Staples v City & Country Helicopters Pty Ltd (1993) 119 FLR 291 Stumann v Spansteel Engineering Pty Ltd [1986] 2 Qd R 471 Teys Brothers (Beenleigh) Pty Ltd v ANL Cargo Operations Pty Ltd [1990] 2 Qd R 288 Walker v Midlink Nominees Pty Ltd (2000) 22 WAR 318 Weldon v Neal [1887] 19 QBD 394 Zibillari v R [1980] ALR 693 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Miller v BP Ltd [2001] WADC 66 South Pacific Air Motive v Magnus (1998) 87 FCR 301 State Bank of Victoria v Parry (1988) 7 ACLC 226

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SAMWAYS -v- ANSETT AUSTRALIA LTD [2001] WASC 140 CORAM : MASTER SANDERSON HEARD : 25 MAY 2001 DELIVERED : 5 JUNE 2001 FILE NO/S : CIV 1668 of 2000 BETWEEN : ALLAN KEITH SAMWAYS

Plaintiff

AND

ANSETT AUSTRALIA LTD (ACN 004 209 410)

Defendant

Catchwords:

Practice and procedure - Application for summary judgment by defendant - Indorsement of claim said to be defective - Meaning of "cause of action"

Legislation:

Civil Aviation (Carriers Liability) Act (Clth) 1959

Result:

Application for summary judgment dismissed

Leave to amend indorsement of claim

(Page 2)

Representation:

Counsel:

Plaintiff : Mr A R Beech

Defendant : Mr B L Nugawela

Solicitors:

Plaintiff : Tottle Christensen

Defendant : D'Angelo & Partners

Case(s) referred to in judgment(s):

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Hamilton Island Enterprises v Commissioner of Taxation [1982] 1 NSWLR 113
Morgan v Banning (1999) 20 WAR 474
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Staples v City & Country Helicopters Pty Ltd (1993) 119 FLR 291
Stumann v Spansteel Engineering Pty Ltd [1986] 2 Qd R 471
Teys Brothers (Beenleigh) Pty Ltd v ANL Cargo Operations Pty Ltd [1990] 2 Qd R 288
Walker v Midlink Nominees Pty Ltd (2000) 22 WAR 318
Weldon v Neal [1887] 19 QBD 394
Zibillari v R [1980] 31 ALR 693

Case(s) also cited:

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Miller v BP Ltd [2001] WADC 66
South Pacific Air Motive v Magnus (1998) 87 FCR 301
State Bank of…

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 Samways v Ansett Australia Ltd

Details

AGLC: Samways v Ansett Australia Ltd [2001] WASC 140
Case: [2001] WASC 140
Decision Date

CaseChat Overview and Summary

In the case of Samways v Ansett Australia Ltd, the plaintiff, Allan Keith Samways, sought damages for injuries sustained during a flight operated by Ansett Australia Limited. The defendant moved for summary judgment, arguing that the plaintiff's writ of summons and indorsement of claim were defective as they did not reference the Civil Aviation (Carriers Liability) Act 1959, which governs such claims. The plaintiff then sought leave to amend the indorsement of claim to properly reference the Act. The court had to decide whether the indorsement of claim was defective and if the amendment was permissible after the limitation period under the Act had expired.

The court considered the argument that the indorsement of claim was defective because it did not explicitly refer to the Act, and whether the plaintiff could amend the indorsement after the limitation period had expired. The court examined the reasoning in Staples v City & Country Helicopters Pty Ltd and Stumann v Spansteel Engineering Pty Ltd, where it was held that claims under statutory regimes could not be revived after the statutory limitation period had expired. However, the court distinguished these cases, finding that the indorsement of claim in the present case did include the relevant facts, even if it did not explicitly reference the Act. The court held that the failure to reference the Act did not render the indorsement defective, and that to do so would cause an injustice to the plaintiff.

The court concluded that the indorsement of claim, while not perfect, did reference the relevant facts and should be read generously. The court granted the plaintiff leave to amend the indorsement of claim, despite the expiry of the limitation period under the Act, as doing otherwise would cause a grave injustice. The court dismissed the defendant's application for summary judgment and granted the plaintiff leave to amend the writ of summons in accordance with the proposed re-amended writ of summons. The court noted that the decision was not taken lightly and was influenced by the need to avoid injustice to the plaintiff and the importance of applying the law as it appeared to be.

Orders