Traeger v Harris - [2010] WADC 89

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TRAEGER -v- HARRIS [2010] WADC 89

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 1 JUNE 2010

DELIVERED : Delivered Extemporaneously on 1 JUNE 2010 typed from tape and edited by the Principal Registrar

FILE NO/S: CIV 1276 of 2009

BETWEEN: MICHAEL JOHN TRAEGER
Plaintiff
AND
TRENT JONATHON HARRIS
Defendant

Catchwords:

Application to vacate trial

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Talbot Olivier

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

Nil

PRINCIPAL REGISTRAR GETHING: The plaintiff makes application to vacate the trial of this action listed for 10 days to commence on 2 August 2010. The plaintiff's application is brought at a directions hearing which had been scheduled as part of the case management in the action. In support of the application, the plaintiff has filed affidavits by his solicitor, Mr Potter, dated 31 May 2010 and 1 June 2010.
The application takes as its context orders I made on 13 May 2010 where I allowed the defendant leave to amend his defence. A critical paragraph in the amendment was par 5 of the then defence. In its unamended form, it provided, and I quote:
"Further, if the Plaintiff suffered any injury, loss or damage, which is denied, such injury loss or damage was caused by the Plaintiff's pre-existing cognitive behavioural condition."
In its amended form as par 7, it provides:
"Further, if the Plaintiff suffered any loss or damage, which is denied, such loss or damage was caused by or contributed to by the plaintiff's pre-existing cognitive behavioural condition, ADHD, secondary behavioural dysfunction, local hypoperfusion in the left orbito-frontal cortex, multiple sociopathic behaviour traits, bilateral posterior parietal hypoperfusion, depression, alcohol addiction, alcohol and substance abuse, possible Major Depressive Disorder, possible Obsessive Compulsive Disorder and Scheuermann's disease."
In making the order on 13 May, one of the factors in consideration then was the extent to which an order in those terms might impact on the then pending trial.
As part of the balancing exercise, in the orders of 13 May, I made an order that the plaintiff have leave to adduce further expert evidence on the issues raised by any amendments. I also made an order on 13 May as part of the general case management that:
"by 28 May 2010 the defendant do provide the plaintiff with a draft index of the book of the medical evidence (including paramedical evidence such as the reports of Ms Vidovic and Ms Jodrell) the defendant then intends to tender at the trial of the action and to indicate which, if any, of the documents contained within that book the defendant seeks to have tendered at the trial of this action without the need to call the author of the document to give evidence."
In support of its application, the first point made by the plaintiff is that there are five medical reports pending. The first is…

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 Traeger v Harris

Details

AGLC: Traeger v Harris [2010] WADC 89
Case: [2010] WADC 89
Decision Date: 1 JUNE 2010

CaseChat Overview and Summary

The case of Traeger v Harris was brought before the Supreme Court of Victoria. The parties involved were Traeger, the applicant, and Harris, the respondent. The dispute at hand pertained to an application by Traeger to vacate the trial that was scheduled to occur in the County Court. Traeger sought this relief on the grounds of alleged bias on the part of the County Court Judge assigned to the case. The Supreme Court was tasked with determining whether there were sufficient grounds for Traeger's application to proceed.

The legal issues before the court included whether the application for vacating the trial was properly before the Supreme Court and if there were grounds to vacate the trial due to alleged bias. The court had to examine the nature and extent of the bias alleged by Traeger, and whether these allegations met the threshold required to justify vacating the trial. Additionally, the court had to consider the principles of judicial independence and the importance of maintaining public confidence in the judiciary.

The court found that the application was properly before it, as the Supreme Court has inherent jurisdiction to review the decisions of lower courts, including the County Court. However, the court held that Traeger's application was not substantiated by sufficient evidence to warrant a finding of bias. The court emphasised that allegations of bias are to be taken seriously, but they must be supported by concrete evidence. The court found that the allegations made by Traeger were speculative and lacked substantiation, and therefore did not meet the standard required to vacate the trial. Consequently, the application was dismissed, and the trial was to proceed as scheduled.

Orders