Voss v Ipkendanz - [2009] NSWSC 562

CITATION: Voss v Ipkendanz [2009] NSWSC 562

HEARING DATE(S): 10 June 2009

JUDGMENT DATE :
19 June 2009

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: (i) leave to appeal granted; (ii) the order of the Local Court of 3 October 2008, that there be a further hearing for the assessment of damages, is set aside; (iii) the matter is remitted to the Local Court for determination in accordance with these reasons; (iv) the Local Court is to provide the parties with an opportunity to be heard as to the future progress of the matter, and in particular the manner in which damages ought to be assessed.

CATCHWORDS: PROCEDURE – inferior courts – New South Wales – claims in nuisance and negligence – hearing on all issues – liability and damages – evidentiary material rejected – defendant liable to plaintiff in nuisance and negligence – decision by magistrate to permit further hearing on damages – appeal by leave – denial of procedural fairness – whether discretion under UCPR r 28.2 available to magistrate - APPEAL – leave to appeal granted – order set aside – direction to further conduct

LEGISLATION CITED: Civil Procedure Act 2005
Local Courts Act 1982
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc & Anor [1981] HCA 39; (1981) 148 CLR 170
Dalecoast Pty Ltd v Guardian International Pty Ltd [2001] WASC 199
Dalecoast Pty Ltd v Guardian International Pty Ltd [2003] WASCA 142
Gabor Martin Nagy v Masters Dairy Ltd [1996] FCA 1096
Gabor Martin Nagy v Masters Dairy Ltd [1997] FCA 1410
Masters Dairy Ltd v Gabor Martin Nagy & Anor [1998] FCA 907

PARTIES: Michael David Voss (Plaintiff)
Andrew Kendall Ipkendanz (Defendant)

FILE NUMBER(S): SC 15761 of 2008

COUNSEL: Dr J G Renwick (Plaintiff)
R A Dick (Defendant)

SOLICITORS: Laurence & Laurence (Plaintiff)
A C Dunstan Lawyers (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 7665 of 2006

LOWER COURT JUDICIAL OFFICER : Magistrate Bradd

LOWER COURT DATE OF DECISION: 3 October 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

19 June 2009

15761/2008 Michael David Voss v Andrew Kendall Ipkendanz
JUDGMENT

1 HER HONOUR: By amended summons filed in Court on 10 June 2009, the plaintiff, Michael David Voss, seeks leave to appeal against the decision of a Local Court Magistrate delivered on 3 October 2008. Since Mr Voss was the defendant in the Local Court and the present defendant, Andrew Kendall Ipkendanz, was the plaintiff, it will avoid confusion if I refer to the parties by their names.

2 Mr Ipkendanz has filed a cross-summons, by which he seeks (contingently) leave to appeal against certain decisions and rulings of the Magistrate.

Background

3 The Local Court proceedings were commenced by statement of claim filed on behalf of Mr Ipkendanz on 4 August 2006. The statement of claim pleaded that he and Mr Voss were the owners of adjoining…

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.

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Details

Case: [2009] NSWSC 562
Decision Date: 19 June 2009

CaseChat Overview and Summary

The case of Voss v Ipkendanz involved the plaintiff, Voss, suing the defendant, Ipkendanz, for claims in nuisance and negligence. The proceedings took place in the Local Court of New South Wales, where the plaintiff sought relief for damages due to the defendant's alleged actions. The case was initially heard on all issues of liability and damages, but the magistrate rejected some evidentiary material presented. The court found the defendant liable to the plaintiff for both nuisance and negligence, and allowed the plaintiff to proceed with a further hearing on damages.

The legal issues before the court included whether the magistrate had the authority to permit a further hearing on damages, and whether the decision to do so denied the plaintiff procedural fairness. The court also needed to determine if the discretion under the Uniform Civil Procedure Rules rule 28.2 was available to the magistrate in this context. The central issue was the procedural fairness and the appropriate application of the relevant rules in allowing further hearings on damages.

The court concluded that the magistrate's decision to permit a further hearing on damages did indeed deny the plaintiff procedural fairness. The court found that the magistrate's discretion under UCPR rule 28.2 was not applicable in this instance, and therefore the decision to permit further hearings on damages was incorrect. As a result, the appeal was granted, and the order was set aside. The court directed that the matter should be further conducted in accordance with the appropriate legal procedures, ensuring procedural fairness for both parties.

Orders