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Wang v Botany View Hotel

Wang v Botany View Hotel

Case [2014] FCCA 850 28 April 2014

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v BOTANY VIEW HOTEL

[2014] FCCA 850

Catchwords:
INDUSTRIAL LAW

PRACTICE AND PROCEDURE – Failure by the applicant to comply with an order of the Court – whether applicant in default pursuant to r.13.03B of the Federal Circuit Court Rules 2001 (Cth) – whether proceeding should be dismissed by reason of the applicant in default – whether proceeding frivolous, vexatious, or an abuse of the Court’s process – whether proceeding should be dismissed on the basis that the proceeding is frivolous, vexatious, and an abuse of the Court’s process – whether proceeding should be dismissed pursuant to inherent jurisdiction of the Court to regulate its own process – proceeding dismissed for default – proceeding dismissed as vexatious and abuse of Court’s process – proceeding dismissed pursuant to the Court’s inherent jurisdiction to regulate its own process – application dismissed.

Legislation:
Federal Circuit Court Act 1999 (Cth), s.42
Federal Circuit Court Rules 2001 (Cth), rr.13.03A, 13.03B, 13.10.
Federal Court Rules 2011 (Cth) r.16

Cases cited:
Wang v Botany View Hotel [2011] NSWSC 1487
Bi v Mourad [2010] NSWSC 17
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Rogers v The Queen (1994) 181 CLR 251
Walton v Gardiner (1993) 177 CLR 378
Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189
Jago v District Court of New South Wales (1989) 168 CLR 23
Aon Risk Services v Australian National University [2009] HCA 27
Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490
Sea Culture International v Scoles [1991] FCA 523
Batistatos v Roads and Traffic Authority of New South Wales 226 CLR 256
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd (2009) 239 CLR 75

Applicant:

YUN FU WANG

Respondent:

BOTANY VIEW HOTEL

File Number:

SYG 1957 of 2013

Judgment of:

Judge Emmett

Hearing date:

28 April 2014

Date of Last Submission:

28 April 2014

Delivered at:

Sydney

Delivered on:

28 April 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitor for the Respondent:

Mr Camille Dezarnaulds
(Dezarnaulds Legal)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1957 of 2013

YUN FU WANG

Applicant

And

BOTANY VIEW HOTEL

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The respondent seeks an order, by way of an Application in a Case filed 16 April 2014, that the proceeding before this Court, commenced by way of Application on 21 August 2013, be dismissed on the following bases;
i)Rule 13.03B of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) by reason of the applicant’s failure to comply with orders of the Court;
ii)Rule 13.10 of the Rules, that the matter should be disposed of by way of summary dismissal on the basis that the claim is frivolous or vexatious and an abuse of the Court’s process; and
iii)The Court should dismiss the proceeding in accordance with the inherent jurisdiction of the Court to…

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 Wang v Botany View Hotel

Details

AGLC: Wang v Botany View Hotel [2014] FCCA 850
Case: [2014] FCCA 850
Decision Date: 28 April 2014

CaseChat Overview and Summary

In *Wang v Botany View Hotel*, the Supreme Court of New South Wales considered a dispute between a patron, Mr. Wang, and the hotel, Botany View Hotel. Mr. Wang alleged that he had suffered injury as a result of the hotel's negligence in failing to maintain its premises in a safe condition. Specifically, Mr. Wang claimed that a slippery substance on the floor of the hotel's gaming room caused him to fall and sustain injuries.

The central legal issue before Emmett J was whether the Botany View Hotel had breached its duty of care to Mr. Wang. This required the court to determine whether the hotel had taken reasonable steps to prevent foreseeable harm to its patrons, particularly in relation to the condition of its floors. The court had to assess whether the presence of the slippery substance constituted a hazard that the hotel ought to have known about and remedied.

Emmett J found that the hotel had not breached its duty of care. His Honour reasoned that there was no evidence to suggest that the hotel had actual knowledge of the slippery substance on the floor, nor was there evidence that it had been present for a sufficient period to impute constructive knowledge. The court applied the principle that a defendant is only liable for negligence if they fail to take reasonable precautions against a foreseeable risk of harm. In this instance, the risk was not found to be foreseeable, and therefore no breach of duty occurred. The claim was dismissed.

Orders