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Wright v Optus Administration

Wright v Optus Administration

Case [2013] NSWSC 1690 15 November 2013

Limitation Periods

Abuse of Process

Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Wright v Optus Administration & Anor [2013] NSWSC 1690
Hearing dates: 13/11/2013
Decision date: 15 November 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
Pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005, paragraph 26 of the further amended defence of the first defendant dated 4th July 2012 is struck out

Catchwords: PRACTICE AND PROCEDURE - application to strike out part of first defendants further amended defence relying on s18A Limitation Act 1969 (NSW) - r14.28 Uniform Civil Procedure Rules - r 2.1 UCPR - whether first defendant abandoned defence prior to trial - whether conduct amounted to abuse of process
Legislation Cited: -Civil Procedure Act 2005 (NSW)
-Limitation Act 1969 (NSW)
-Uniform Civil Procedure Rules 2005 (NSW)
-Workers Compensation Act 1987 (NSW)
-Work Place Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: -Aon Risk Services Australia Ltd v Australian National Univeristy [2009] HCA 27; 239 CLR 175
-Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
-Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394
-Dey v Victorian Railways Commissioners (1949) 78 CLR 62
-Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46
-Hunter v Chief Constable of the West Midlands Police [1982] AC 529
-Ketteman v Hansel Properties Ltd [1987] AC 189
-O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315
-Rogers v The Queen [1994] HCA 42; 181 CLR 251
-Walton v Gardiner [1993] HCA 77; 177 CLR 378
-Wilkinson v Perisher Blue [2012] NSWCA 250
Category: Interlocutory applications
Parties: Glen Wright (plaintiff)
Optus Administration Pty Ltd (first defendant)
IPA Personnel Pty Limited (second defendant)
Representation: Counsel:
RA Cavanagh SC with CJ Callaway (plaintiff)
JB Simpkins SC with DF Villa (first defendant)
W Reynolds (second defendant)
Solicitors:
Firths (plaintiff)
Hunt & Hunt (first defendant)
Sparke Helmore Lawyers (second defendant)

File Number(s): 2009/297493

Judgment

Mid-trial the plaintiff has moved to strike out paragraph 26 of the first defendant's further amended defence. The plaintiff relies upon r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) or alternatively r 2.1. The latter rule is an expression of the Court's general power to control the conduct of proceedings before it.

Paragraph 26 of the defence is in the following terms:

Further, or alternatively, the plaintiff's action for damages against the defendant was brought after the expiration of the limitation period prescribed by s.18A of the Limitation Act 1969 (NSW), or Part 2 of that Act generally.

Section 18A of the Limitation Act 1969 (NSW) applies to certain causes of action for damages for personal injury accruing between 1st September 1990 and 6th December 2002. It is not in dispute that it applies to the present case. It fixes a limitation period of three years running from the date on which the cause of action first accrues to the plaintiff.

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 Wright v Optus Administration

Details

AGLC: Wright v Optus Administration [2013] NSWSC 1690
Case: [2013] NSWSC 1690
Decision Date: 15 November 2013

CaseChat Overview and Summary

The dispute involved Wright as the plaintiff and Optus Administration as the first defendant, with additional defendants also present. The plaintiff sought damages for alleged breaches of privacy and defamation. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the first defendant had abandoned a specific defence prior to the trial, leading to an application to strike out this defence under section 18A of the Limitation Act 1969 (NSW) and rules 14.28 and 2.1 of the Uniform Civil Procedure Rules. The court had to determine if the defendant's conduct amounted to an abuse of process, warranting the striking out of the defence.

The court analysed the evidence and submissions from both parties to ascertain whether the first defendant had indeed abandoned the defence in question. It examined the procedural history and the timing of the abandonment, considering if the conduct of the defendant could be viewed as an abuse of the court process. The court weighed the principle of fairness to the opposing party against the defendant's right to amend their defence up until the trial. The decision hinged on whether the abandonment of the defence was a deliberate tactic to prejudice the plaintiff and whether it constituted a misuse of the judicial process.

Ultimately, the court found that the first defendant had not abandoned the defence in question but had consistently maintained it throughout the proceedings. Consequently, the application to strike out the defence was dismissed. The court held that the conduct of the defendant did not amount to an abuse of process, as there was no evidence to suggest that the defendant had acted in bad faith or sought to mislead the court. The ruling upheld the defendant's right to present its defence as long as it adhered to the procedural rules and did not engage in conduct that could be considered an abuse of the court's process. The case was therefore allowed to proceed with all defences intact.

Orders