Tedeschi v Relf Holdings Pty Ltd
[2010] TASSC 49
•11 November 2010
[2010] TASSC 49
COURT: SUPREME COURT OF TASMANIA
CITATION: Tedeschi v RELF Holdings Pty Ltd & Anor [2010] TASSC 49
PARTIES: TEDESCHI, James Franco
v
R.E.L.F. HOLDINGS PTY LTD (ACN 005 869 992)
GOWER MANAGEMENT PTY LTD (ACN 105 803 692)
FILE NO/S: 523/2009
DELIVERED ON: 11 November 2010
DELIVERED AT: Hobart
HEARING DATE: 4 November 2010
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under rules of court – Default of appearance – Setting aside judgment – The usual requirement that there be an affidavit containing evidence of a prima facie defence.
Supreme Court Rules 2000 (Tas), r355
Aust Dig Procedure [269]
REPRESENTATION:
Counsel:
Plaintiff: A Woodgate
Defendants: L A Taylor
Solicitors:
Plaintiff: W G Tucker
Defendants: Page Seager
Judgment Number: [2010] TASSC 49
Number of paragraphs: 16
Serial No 49/2010
File No 523/2009
JAMES FRANCO TEDESCHI v R.E.L.F. HOLDINGS PTY LTD
and GOWER MANAGEMENT PTY LTD
REASONS FOR JUDGMENT HOLT AsJ
11 November 2010
The plaintiff's writ claims damages for personal injury. It was posted to the registered offices of the two defendant companies. Appearances were not filed and interlocutory judgments in default were entered. The defendants have now applied for an order setting those judgments aside.
The application is made pursuant to the Supreme Court Rules 2000, r355, which is as follows:
"Any judgment by default under these rules may be set aside or varied by the Court or a judge either unconditionally or on any terms the Court or a judge considers appropriate."
Although the discretion is not fettered by the terms of the rule, regard will usually be had to whether there is a defence on the merits; the explanation for the default; any delay in bringing the application and the explanation for it and to any prejudice which will be caused to the plaintiff if the judgment is set aside.
In Evans v Bartlam [1937] AC 473, Lord Atkin said at 480:
"The discretion is in terms unconditional. The Courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence."
The general rule that there must be an affidavit showing a prima facie defence is not inflexible. In Evans v Bartlam, Lord Atkin went on to say at 480 that: "Even the … rule as to affidavit of merits could, in no doubt rare but appropriate cases, be departed from".
There is no suggestion in the present case that the usual rule should not apply and the defendants have filed an affidavit of merits. The question is whether that affidavit contains evidence of a prima facie defence.
The affidavit must be considered in the context of the plaintiff's statement of claim. It is as follows. The defendants operated a motor vehicle service workshop at Launceston. In November 2006 the plaintiff was present at the workshop. The defendants' employee Marcus Brown was re-attaching a fitting to an air hose. The defendants' employee Joel Onen, having turned off the compressed air, turned it back on before the repair was completed. The end of the hose escaped Mr Brown's grasp and struck the plaintiff in the eye causing injury.
The only affidavit directed to the existence of a defence came from Mr Brown. In it Mr Brown said that the plaintiff operated a business of installing automotive garage equipment including compressed air lines used for tasks such as inflating tyres. He happened to be at the defendants' workshop on 7 November 2006. Mr Brown had connected a tyre inflator to the coupling attached to the end of a compressed air hose and was checking tyre pressures. The coupling slipped out allowing the compressed air to escape and the end of the hose began whipping around on the floor. Mr Brown then caught it and bent it over about 30 centimetres from the end to stop the compressed air from flowing through. He was unsuccessful in his attempts to reinsert the coupling and another employee turned the air off at the tap. Mr Brown, in his affidavit, then describes the events leading to the plaintiff's injury as follows:
"12 The Plaintiff then approached me having noticed the problem and said 'I've got some new crimps we'll put on that hose' or words to that effect. I responded to him by saying that 'that would be good' or words to that effect.
13 I believe the Plaintiff was in the workshop at the Premises that morning for the purposes of performing maintenance on the vehicle hoists he had recently installed. Although I believe he had installed the air lines I do not believe he was there on that morning for the purpose of performing any maintenance on them.
14 The Plaintiff then left the workshop and went out to his work van to retrieve the crimps. I continued to hold the air line folded over approximately 12 inches from the end of the hose.
15 The Plaintiff then returned to the workshop with a 'half moon clamp' approximately 15 - 30 seconds later. He did not speak with anyone else in the workshop. He did not inspect the air line valves and tap.
16 The Plaintiff then approached me with the crimp for the purpose of assisting me with replacing the crimp. The Plaintiff before handing me the crimp took no steps to check that the air to the hose was turned off, that the air in the hose was isolated and had no conversation with me as to what he intended to do apart from what was said in paragraph 12.
17 The Plaintiff then handed me the crimp and I was in the process of placing it onto the end of the air hose when the hose all of sudden left my hand, I assume as a result of someone turning the air line back on and the Plaintiff was struck in the face …"
Counsel for the defendants submitted that the affidavit contains evidence showing the possibility of the claim being successfully defended on the bases that:
(a) the accident occurred without negligence on the part of the defendants or their employees;
(b) the plaintiff's injury was due, at least in part, to his own negligence; and
(c) the plaintiff voluntarily assumed the risk of injury to himself.
During the course of argument the first proposed defence was not pursued with any great conviction and the third proposed defence was abandoned.
In his statement of claim the plaintiff alleges that the defendant had no system of tagging out of service or locking the tap so as to prevent the compressed air being turned back on whilst repairs were being undertaken. This allegation is not disputed in Mr Brown's affidavit. In cross-examination he agreed that tags and a locking system were first introduced to the workshop four days after the accident. In the statement of claim the plaintiff also alleges that the defendants' employee, Mr Onen, turned the compressed air back on before the repair work had been completed. The fact that the compressed air was restored to the hose during the repair work is acknowledged by Mr Brown and he has not disputed the plaintiff's assertion that it was due to the tap being turned back on by Mr Onen.
There is nothing in the affidavit to suggest that the failure to have a tagging and locking system and turning the air back on during the course of the repair was either not negligent or not causative of the plaintiff's injury. The affidavit discloses no plausible basis for the possibility of a finding at trial that the injury occurred without negligence on the part of the defendants or their employees.
I turn to the question of whether there is evidence to support a finding that the plaintiff contributed to his injury by his own negligence. It appears from Mr Brown's affidavit that the plaintiff approached Mr Brown to hand to him a clamp needed to be placed around the outside of the hose to secure the barb end of the coupling which had dislodged from inside the end of the air hose. In his affidavit, Mr Brown said that the plaintiff, before performing this task, did not speak with anyone else in the workshop. Mr Brown said that the plaintiff did not inspect the air lines, valves and taps. But the air had been turned off and there was no tag and lock system available. There is no evidence to indicate that the compressed air was restored to the hose due to a defect in a valve or the tap. There is no evidence relating to the risk that someone might turn the compressed air back on unexpectedly during the repair. Mr Brown said in cross-examination that the employee had turned the hose off "for me". The plaintiff then went to his van and returned "15 – 30 seconds later" with the clamp. The plaintiff's case is that the employee who turned the air off was the employee who turned it back on. Mr Brown does not dispute this. There is no evidence suggesting that the plaintiff would have reason to think that the air might be turned back on as he was handing over the clamp or assisting in securing it. For example, there is no evidence that the employee who turned the air off to enable the repair to occur failed to remain by the tap as the repair was being undertaken.
The affidavit does not contain sufficient evidence to show the existence of a possibility of a finding at trial that the plaintiff's injury was due in part to his own fault.
The defendants have not suggested that evidence disclosing a basis upon which the claim might be defended may exist, but is not presently available to them. The accident occurred at the defendants' workplace and in the presence of the defendants' employees. There is reference in the affidavit of the defendants' solicitor to there being "documentation … relating to a Workplace Standards Tasmania investigation" and no complaint as to its accessibility or adequacy. The defendants have not suggested that a trial is required in order for them to ascertain precisely how the accident occurred. I am not persuaded that any useful purpose would be served by setting aside the judgments.
For completeness, I record that if the existence of a defence on the merits had been demonstrated I would have made an order setting aside the judgments. The defendants did not deliberately allow the judgments to be entered. There was a delay of several months between the defendants learning of the existence of the judgments and the filing of the set aside application. Much of this occurred whilst the defendants' solicitor investigated the circumstances of the accident. The lengthy delay in bringing the application is consistent with the defendants having difficulty finding a defence. But if a defence had been found, the delay, in the absence of prejudice to the plaintiff, would be of little consequence. Counsel for the plaintiff did not assert the existence of any specific prejudice resulting from delay. He referred to the generalities regarding the diminution in the quality of justice which comes with delay, but did not submit that the chance of a fair trial had been lost.
The defendants not having produced evidence of a prima facie defence and there being no reason to think that such evidence might be discovered, I am not persuaded that they should have a favourable exercise of the discretion to set the judgments aside. The application will be dismissed.
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