Totten v Remo Constructions

[2001] NSWSC 472

CITATION:	Totten v Remo Constructions & Ors [2001] NSWSC 472
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20522 of 1999
HEARING DATE(S):	5 June 2001
JUDGMENT DATE:	8 June 2001
PARTIES :	Anthony John Totten (Plaintiff) v Remo Constructions Pty Ltd (First Defendant) J & M Waste Pty Ltd (Second Defendant) Zayson Pty Ltd (Third Defendant) Multiplex Constructions (NSW) Pty Ltd (Fourth Defendant) Aust B C Pty Ltd (Fifth Defendant) Universal Waste Bins Pty Ltd (Sixth Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr J B Conomy (Plaintiff) N/A (First & Second Defendants) Mr A Ogborne (Third Defendant) N/A (Fourth to Sixth Defendants)
SOLICITORS:	Benjamin & Robinson (Plaintiff) N/A (First & Second Defendants) Abbott Tout (Third Defendant) N/A (Fourth to Sixth Defendants)
CATCHWORDS:	Summary dismissal - issue of fact - power must be exercised with exceptional caution - material must demonstrate that plaintiff must fail on the issue.
LEGISLATION CITED:	Supreme Court Rules 1970, Pt 13 r 5.
CASES CITED:	Webster & Anor v Lampard (1993) 177 CLR 598.
DECISION:	See Paragraph 22.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 8 JUNE 2001

20522 of 1999 ANTHONY JOHN TOTTEN v REMO CONSTRUCTIONS PTY LTD & ORS

JUDGMENT


1   The plaintiff suffered injury in a work incident. It took place on or about 1 October 1997. He suffered the injury when he was struck by a steel waste bin.

2   In 1999, he commenced these proceedings. His claim is as propounded in an Amended Statement of Claim filed on 28 September 2000. It names six defendants.

3   The second defendant is sued as the supplier of the bin. The plaintiff is in doubt as to who was the manufacturer of the bin. In the alternative he sues the third, fifth and sixth defendants as manufacturer.

4   On 28 May 2001, the third defendant filed a Notice of Motion. The application seeks summary dismissal of the claims brought against the third defendant.

5   This application was heard on 5 June 2001. It had been referred by a Registrar to the Master’s List on the basis that it was then ready for hearing. At the outset the court mentioned the possibility that a separate determination of the question in issue may produce a more satisfactory outcome for the parties. Shortly after the commencement of the hearing, counsel for the third defendant sought further instructions. His instructions to continue with the hearing were then confirmed. Subsequently, after the hearing was well advanced, an application for adjournment was then made. It was opposed. In the circumstances, it was then refused.

6 The third defendant proceeds pursuant to Pt 13 r 5 of the Supreme Court Rules 1970. It is contended that the proceedings brought against the third defendant are an abuse of process of the court.

7   The court has a discretionary power to grant summary relief. The power is exercised having regard to the particular circumstances of the case before the court and so that justice is best served between the parties. There is abundant authority which has the effect of restricting the granting of relief to what has been described as clear cases. The applicant for summary relief bears the onus of proof.

8   In its defence, the third defendant has denied that it was the manufacturer of the bin. It is contended that the claims brought against it are doomed to failure because it was not the manufacturer. It was this issue of fact that was agitated on the hearing of the application for summary dismissal.

9   In Webster & Anor v Lampard (1993) 177 CLR 598 at 602-603 in a joint judgment (Mason CJ, Deane J and Dawson J) the High Court stressed the need for exceptional caution particularly in cases where the ultimate outcome turned upon the resolution of a question of fact. The real issue for the court is that it must be demonstrated that the action should not go to trial in the ordinary way because it is apparent that it must fail.

10   The third defendant relied on an affidavit sworn by Vicki Lynne Crawshaw (a solicitor in the employ of the solicitors for the third defendant). This affidavit did little more than annex a number of documents. Certain of the annexed material was not admitted into evidence. A tender of some other material (which had been produced by the third defendant itself in response to a subpoena served by the plaintiff) was also not admitted into evidence. The plaintiff did not place any material before the court.

11   It might be thought that in an application such as is presently before the court there would have been direct evidence on oath inter alia from the client dealing with the question of manufacture. Contrary to such an expectation, the third defendant elected to embark on a hearing on the limited material earlier mentioned.

12   In an application of this nature, it is not incumbent upon the plaintiff to place any material before the court. It is the applicant/third defendant which bears the onus of placing before the court the material that clearly demonstrates that it was not the manufacturer of the bin.

13   In my view, it has failed to discharge that onus. Indeed, because of evidentiary deficiencies, it seems to me that the exercise was doomed to failure from the outset. I shall now briefly turn to some of the material and certain of the submissions.

14   Largely, the material admitted into evidence consisted of communications passing inter alia between solicitors for the parties and/or insurers.

15   There were letters in which the solicitors for the third defendant had asserted that their client was not the manufacturer. Ultimately, this material was not relied on as providing evidence of the facts asserted therein.

16   Emphasis was placed on material appearing in a letter dated 30 March 2000 from the solicitors for the plaintiff. The letter contained inter alia the following:-
“Our inquiries have revealed that the bin was in fact not supplied by Supa Engineering”.

This was seized upon and said to be an admission made on behalf of the plaintiff on the question of whether or not the third defendant was the manufacturer of the bin (it was common ground that Supa Engineering was a name under which the third defendant carried on business). It was further said that this admission was reinforced by other material placed before the court.


17   The other material is open to the interpretation that the case against the third defendant may not be a strong one. But also, it does show that the identification of the actual manufacturer may be a matter of difficulty (see letter dated 17 August 1999) and that there is material which purports to identify Supa Engineering as the manufacturer of the bin (see material dated 11 October 1999).

18   What was said in the letter 30 March 2000 has to be read in the context of the distinction drawn by the plaintiff between the “supplier” and the “manufacturer” of the bin. When seen in this context, the alleged admission fails to afford comfort to the third defendant.

19   In the circumstances, it does not appear to me from the material that the plaintiff’s claims must fail.

20   Not only has the third defendant failed to satisfy the test prescribed by the courts for the granting of summary relief, it is also faced with other potential problems. They were not argued and do not form any part of the basis of my decision. I shall just mention them briefly for the purposes of completeness.

21   I have earlier mentioned that summary relief is a discretionary remedy. Apart from the matter of the doubt that attends the question of manufacturer, a further consideration relevant to the granting of it may be the delay that has ensued prior to it being sought. In this case, the proceedings were brought in 1999 and a Defence was filed on 18 October 2000. It has not been explained by the third defendant why the present application is now brought both after the filing of a Defence and a subsequent delay of many months.

22   The Notice of Motion is dismissed. The third defendant is to pay the costs of the application.
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Last Modified: 06/12/2001