Utiger v Brown and Venteb Pty Ltd - [2002] VSC 306

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1165 of 2001

MICKAEL JOHN UTIGER

Plaintiff

BILL BROWN

- and -

VENTEB PTY LTD
(Trading as Plasta Masta)

Firstnamed Defendant

Secondnamed Defendant

---

JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2002
DATE OF JUDGMENT:	6 August 2002
CASE MAY BE CITED AS:	Utiger v Brown and Venteb Pty Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 306

---

APPLICATION to decide issues at a preliminary hearing – Rule 47.04 – No clear line of demarcation between issues – Overlap of factual matters – Possibility of inconsistent findings of facts – Injustice to defendants – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mrs L. Bird	J.G. Thompson
For the Firstnamed and Secondnamed Defendants	Mr I. Arnold	Norris Coates
WorkCover Authority	Mr Coysh (by leave)

HIS HONOUR:

This is the return of a summons in the proceeding issued by the plaintiff seeking an order pursuant to Rule 47.04 of the Rules of Court that questions raised by the amended defence be tried before the trial of the proceeding.

The Proceeding

The proceeding was instituted by Mickael John Utiger, (“the plaintiff”), on 11 December 2001 by writ. According to his statement of claim, the plaintiff was a member of a partnership which carried on the work of plastering. In April 2001, the plaintiff was performing plastering sub-contract work for the second defendant, Ventab Pty Ltd, trading as Plasta Masta, (“Ventab”), at a building site at Katunga. The first defendant, Bill Brown, (“Mr Brown”), was engaged and employed by Ventab to deliver plasterboard to the site.

On 20 April 2001, the plaintiff was assisting Mr Brown to unload plasterboard from a truck and in so doing, Mr Brown dropped a piece of plasterboard and as a result, the plaintiff suffered a moderately severe injury to his lumbar spine.

As a result of the said incident, the plaintiff has incurred losses and expenses and suffered economic loss.

The plaintiff asserts in his statement of claim that the incident was caused by the negligence of Mr Brown and Ventab.

The plaintiff does not assert that there was any special relationship existing between him and the defendants at the relevant time, and accordingly, it would be necessary for him in the proceeding to establish that at the relevant time, the defendants, or one of them, owed him a duty of care. See Richards v The State of Victoria [1969] VR 136 at 140.

The plaintiff’s claim is that he was an independent contractor and that the defendants did owe him a duty of care. The duty arose by reason of the principles established in Donoughue v Stevenson [1932] AC 562. See, by way of example, Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 30 et seq per Mason J.

The plaintiff sought trial by judge alone but the defendants have filed a notice seeking trial by jury. At present, the trial will…

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.

Keep reading for free

Create a free CaseChat account to read Utiger v Brown and Venteb Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] VSC 306
Decision Date: 6 August 2002

CaseChat Overview and Summary

The application before the court was made by the plaintiff, Utiger, against the defendants, Brown and Venteb Pty Ltd. The plaintiff sought a determination of certain issues at a preliminary hearing, under the rules of the court. The dispute at the heart of this matter involves a complex web of contractual and tortious obligations, with overlapping factual matters that raise the possibility of inconsistent findings of fact. The plaintiff argued that a preliminary determination of certain issues would streamline the proceedings and avoid potential injustice to the defendants.

The primary legal issue before the court was whether it was appropriate to decide certain issues at a preliminary hearing, given the overlap of factual matters and the potential for inconsistent findings of fact. The court considered whether such a determination would result in an injustice to the defendants, and whether the overlap of factual matters warranted a preliminary hearing. The court was required to balance the potential benefits of a preliminary determination against the risk of inconsistent findings of fact and the potential injustice to the defendants.

The court found that there was no clear line of demarcation between the issues that the plaintiff sought to determine at the preliminary hearing and those that were to be determined at the final hearing. The court was concerned that a preliminary determination of certain issues could result in inconsistent findings of fact, which would be an injustice to the defendants. The court held that, in the absence of a clear line of demarcation between the issues, it was not appropriate to determine certain issues at a preliminary hearing. Accordingly, the court dismissed the application.

The court made no orders in relation to the application, as it was dismissed. The defendants were not required to provide any security for costs, as the application was dismissed without any finding against them. The case will now proceed to the final hearing, where all issues will be determined.

Orders