Shipton v Kone Elevators Pty Ltd - [2020] ACTSC 129

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Shipton v Kone Elevators Pty Ltd
Citation:	[2020] ACTSC 129
Hearing Date:	On the papers
DecisionDate:	28 May 2020
Before:	Burns J
Decision:	See [16]
Catchwords:	PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – Error in judgment – rr 1613 and 6906 of the Court Procedure Rules 2006 (ACT) – judgment entered for the plaintiff on 3 April 2020 – judgment neglected to address plaintiff’s claim for future out of pocket expenses – amending the judgment to rectify oversight – consideration of plaintiff’s claim for future out of pocket expenses
Legislation Cited:	Court Procedure Rules 2006 (ACT) rr 1613, 6906
Cases Cited:	D’Arcy v Caltex Australia Limited (No 2) [2018] ACTSC 306 Massouras v Kone Elevators Pty Ltd; Pattinson v Kone Elevators Pty Ltd; Shipton v Kone Elevators Pty Ltd; Soesman v Kone Elevators Pty Ltd [2020] ACTSC 66
Parties:	Alison Shipton (Plaintiff) Kone Elevators Pty Ltd (1st Defendant) The Trust Company Limited (2nd Defendant) Cromwell Corporation Limited (3rd Defendant) Cromwell BT Pty Ltd (4th Defendant) Cromwell Property Securities Limited (5th Defendant) Cromwell Property Services Pty Ltd (6th Defendant) Cromwell Funds Management Limited (7th Defendant) Cromwell Project & Technical Solutions Pty Ltd (8th Defendant) Cromwell Property Group (9th Defendant) Cromwell Property Fund (10th Defendant) Cromwell Diversified Property Trust (11th Defendant)
Representation:	Counsel A Bartley SC (Plaintiff) B K Nolan (1st Defendant) L Hawkes (2nd-11th Defendants)
Solicitors Ken Cush and Associates (Plaintiff) Moray & Agnew (1st Defendant) McCabe Curwood (2nd-11th Defendants)
File Number:	SC 400 of 2016

BURNS J:

On 3 April 2020, I ordered that judgment be entered for Mrs Shipton against the first defendant (Kone): [2020] ACTSC 66. Mrs Shipton was awarded damages in the sum of $2,140,246.48. It was subsequently brought to my attention that I had neglected to address Mrs Shipton’s claim for future out of pocket expenses. This was clearly an oversight on my part, as I had found Kone to be liable for damages and had addressed each of the other heads of damage claimed by Mrs Shipton.

I am satisfied that I am able to rectify this oversight by amending the judgment in favour of Mrs Shipton. This may be done either by virtue of r 6906 of the Court Procedure Rules 2006 (ACT) (the Court Procedure Rules) (the slip rule) or r 1613 of the Court Procedure Rules: see D’Arcy v Caltex Australia Ltd (No 2) [2018] ACTSC 306.

The plaintiff claimed the following amounts by way of future out of pocket expenses:

(a) review by a general practitioner four times a year at $108.00 per consultation, amounting to $9,603.69 ($8.31 x 1,156.0);

(b) review by a neurosurgeon once a year, at $170.00 per consultation, amounting to $2,223.00 ($1.92 x 1,156.0);

(c) review by a physiotherapist, 12 sessions a year at $135.00 per session, amounting to $15,000.00 ($31.15 x 1,156.0);

(d) review by a psychologist, 12 sessions in the first year, and then 4 sessions in the second year, at $250.00…

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 Shipton v Kone Elevators Pty Ltd

Details

AGLC: Shipton v Kone Elevators Pty Ltd [2020] ACTSC 129
Case: [2020] ACTSC 129
Decision Date: 28 May 2020

CaseChat Overview and Summary

The case of Shipton v Kone Elevators Pty Ltd involved the plaintiff, Shipton, who sought compensation from the defendant, Kone Elevators, due to an injury sustained from a defective product. The dispute was heard in the ACT Civil and Administrative Tribunal, which was required to address an oversight in the initial judgment. The judgment, entered on 3 April 2020, failed to consider the plaintiff's claim for future out-of-pocket expenses. The tribunal was tasked with rectifying this oversight by amending the judgment to include consideration of this claim.

The primary legal issue before the tribunal was whether the judgment could be amended to address the oversight regarding the plaintiff's claim for future out-of-pocket expenses. This involved interpreting rules 1613 and 6906 of the Court Procedure Rules 2006 (ACT), which provide the framework for amending judgments. The tribunal needed to determine if such an amendment was permissible within the stipulated timeframe and if it was in the interests of justice to do so.

In its reasoning, the tribunal found that the oversight was a significant error which affected the fairness and completeness of the judgment. The tribunal noted that while the general rule is that judgments cannot be amended after the time specified in the rules, there are exceptions for correcting errors that affect the rights of a party. Given the nature of the oversight, the tribunal concluded that it was appropriate to amend the judgment to include consideration of the plaintiff's claim for future out-of-pocket expenses. This decision was made in the interests of justice to ensure that all claims raised by the plaintiff were properly addressed.

The tribunal ordered that the judgment entered on 3 April 2020 be amended to include consideration of the plaintiff's claim for future out-of-pocket expenses. This amendment allowed for a comprehensive review of the plaintiff's claims, ensuring that all aspects of the injury and its consequences were addressed in the final determination.

Orders

Orders of the court

See [16]

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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