Sutton v Firth

Case [2007] NSWDC 43
CITATION: Sutton v Firth [2007] NSWDC 43
HEARING DATE(S): 22/03/07-23/03/07
 
JUDGMENT DATE: 
27 April 2007
JURISDICTION: Civil
JUDGMENT OF: Goldring DCJ
DECISION: Dismiss motion to strike out brought by the cross-defendants
CATCHWORDS: Practice and procedure - strike out pleadings - contribution and indemnity - workers compensation - election to accept lump sum - revocation - Civil Liability Act Part 4 - proportionate liability - claim arising out of personal injury - solicitor and client conflict of interest
LEGISLATION CITED: Uniform Civil Procedure Rules 13.4, 14.28
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s5
Civil Liability Act 2002 (NSW) Part 4
Workers' Compensation Act 1987
Fair Trading Act 1987
Civil Procedure Act
CASES CITED: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500
Australian Securities and Investments Commission v Loiterton [2004] NSWSC 897 at [111]
Dillingham Constructions Pty Ltd v Steel Mains Pty Limited (1975) 132 CLR 323
Mahony v J Krusich (Demolitions) Pty Limited (1985) 156 CLR 522
Argyropoulos v Layton & Anor [2002] NSWCA 183
Wilson v Rigg [2002] NSWCA 246
New South Wales v Taylor (2001) 204 CLR 461
Saad v J Robins & Sons Pty Limited [2003] NSWCA 87
PARTIES: Renee Leslie Sutton (Plaintiff)
Stephen Firth (Defendant/Cross Claimant/Respondent)
Peter Kell & others (First Cross Defendants/Applicants)
Deborah Ens (Second Cross Defendant/Applicant)
FILE NUMBER(S): 3309/05
COUNSEL: P Mooney (Plaintiff)
R Goodridge (Defendant/Cross Claimant/Respondent)
D Priestley (Cross Defendants/Applicants)
SOLICITORS: ENS Lawyers
Firths - The Compensation Lawyers(Defendant/Cross Claimant)
Yeldham Lloyd Associates Lawyers ((First Cross Defendants/Applicants)
Thomson Playford Lawyers (Second Cross Defendant/Applicant)

JUDGMENT

1 This is an application by the cross-defendants to strike out the cross-claim on the grounds that it contravenes either Rule 13.4 (Frivolous and vexatious proceedings ) or Rule 14.28 (Circumstances in which court may strike out pleadings) of the Uniform Civil Procedure Rules. The relevant parts of these Rules provide:


      13.4 (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
          (a) the proceedings are frivolous or vexatious, or
          (b) no reasonable cause of action is disclosed, or
          (c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.


      14.28 (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
          (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
          (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
          (c) is otherwise an abuse of the process of the court.

2 The major thrust of the applicant's submissions are that the cross action could not succeed. In other words it submits that the cross-claim does not disclose a reasonable cause of action.

The General Steel principles

3…

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AGLC
Sutton v Firth [2007] NSWDC 43
Case
[2007] NSWDC 43
Decision Date

CaseChat Overview and Summary

Sutton brought a personal injury claim against Firth, who in turn sought contribution and indemnity from Sutton's former employer. Sutton had previously accepted a lump sum from the employer under the workers' compensation scheme, but later sought to revoke the election and proceed with the personal injury claim. Firth and the employer sought to have the claim struck out, arguing it was an abuse of process, in addition to claiming proportionate liability. The court had to determine if the claim was an abuse of process and whether the statutory provisions on proportionate liability applied.

The court noted that Sutton's acceptance of the lump sum under the workers' compensation scheme was valid, but the subsequent attempt to revoke it was not an abuse of process. The court held that the statutory provisions did not apply to Sutton's claim, as the injury arose out of the incident with Firth. Regarding the conflict of interest between Sutton and his former employer, the court found that it did not automatically preclude Sutton from proceeding with his claim against Firth. The court found that the motion to strike out was without merit.

The court dismissed the motion to strike out brought by Firth and the employer. The court found that Sutton's claim was not an abuse of process and that the statutory provisions on proportionate liability did not apply. The court further found that the conflict of interest between Sutton and his former employer did not preclude Sutton from proceeding with his claim against Firth. The orders of the court were that the motion to strike out was dismissed with costs.

Orders

Orders of the court

Dismiss motion to strike out brought by the cross-defendants

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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