Wyer v Hunt - [2005] ACTSC 15

ANDREW MELVILLE WYER v DAVID C HUNT
[2005] ACTSC 15 (11 March 2005)

PROCEDURE – pleading – application to deliver amended defence – some amendments inconsistent with earlier admissions
EVIDENCE – admission before action – admission by defendant’s insurer – circumstances in which admission may be withdrawn

Road Transport (General) Act 1999
Evidence Act 1995, s 144
Motor Accidents Compensation Act 1999 (NSW)
Motor Accidents Act 1988 (NSW)

Reinicke v Neilson [2004] ACTSC 5 (Master Harper, 27 February 2004, unreported)
Celestino v Celestino, (Spender, Miles and Von Doussa JJ, Federal Court of Australia, 16 August 1990, unreported)
Cropper v Smith (1884) 26 Ch D 700
Clough & Rogers v Frog (1974) 48 ALJR 4481
Langdale v Danby (1982) 1 WLR 1123
Drabsch v Switzerland General Insurance Co Limited (Santow J, Supreme Court of New South Wales, 16 October 1996, unreported)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Ness v Graffen (2003) 60 NSWLR 549

No. SC 219 of 2004

Judge: Master Harper
Supreme Court of the ACT

Date: 11 March 2005

IN THE SUPREME COURT OF THE )
) No. SC 219 of 2004
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:ANDREW MELVILLE WYER
Plaintiff

AND:DAVID C HUNT
Defendant

ORDER

Judge:  Master Harper
Date:  11 March 2005
Place:  Canberra

THE COURT ORDERS THAT:

That the defendant have leave to amend the defence by adding paragraphs 5 and 9 as set out in the draft amended defence which is annexure “F” to the affidavit of Ana Forster affirmed on 23 February 2005.

The defendant’s application for leave to amend the defence otherwise be dismissed.

This is an application for leave to deliver an amended defence in an action for damages for personal injury arising out of a traffic accident. To grant the application would have the effect of permitting the defendant to withdraw an earlier admission of liability.

The accident happened at about 9.30 pm on 30 October 2003. The plaintiff was riding his motorcycle north on Wentworth Avenue, Barton. The defendant was driving his Toyota van north in Brisbane Avenue, which forms a T-junction with Brisbane Avenue. Brisbane Avenue runs approximately east-west. Wentworth Avenue runs roughly north-south, and meets Brisbane Avenue to its west. For consistency I have adopted this notional compass in these reasons, making consequent changes where the parties in the pleadings, particulars or submissions have used a different frame of reference. North of the junction, Wentworth Avenue becomes Bowen Drive, which may be regarded, in terms of road markings, median strips and lane lines, as a continuation of it. It appears that it was the intention of the defendant to make a right turn into Wentworth Avenue to travel south. There is a stop sign for east-bound right-turning traffic in Brisbane Avenue, to which the defendant was subject.

Although Brisbane Avenue terminates at Wentworth Avenue and Bowen Drive, both parties have referred to the junction as an intersection. I shall use the same terminology.

The plaintiff’s case is that the defendant failed…

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 Wyer v Hunt

Details

AGLC: Wyer v Hunt [2005] ACTSC 15
Case: [2005] ACTSC 15
Decision Date: 11 March 2005

CaseChat Overview and Summary

In the case of Wyer v Hunt, the plaintiff, Wyer, sought damages for injuries sustained in a motor vehicle accident. The defendant, Hunt, filed a defence denying liability and raising contributory negligence as a defence. The dispute centred on the admissibility of certain amendments to the defence, specifically those inconsistent with earlier admissions, and the withdrawal of an admission by the defendant's insurer. The matter was heard in the Supreme Court of New South Wales.

The court had to decide whether the defendant could amend the defence by adding specific paragraphs inconsistent with earlier admissions. Additionally, the court had to determine if the defendant's insurer could withdraw an admission made before the action was initiated. The key legal issues were whether such amendments were permissible under the rules of pleading and if the insurer's admission could be retracted.

The court granted the defendant leave to amend the defence by adding the specified paragraphs, despite their inconsistency with earlier admissions. The court found that the amendments were not barred by the rules of pleading as they did not prejudice the plaintiff's case. Regarding the insurer's admission, the court ruled that the admission could be withdrawn if there was a material change in circumstances or if the admission was made under a mistake of fact. The court found no such circumstances present in this case.

The court's final orders included granting the defendant leave to amend the defence by adding the paragraphs outlined in the annexure to the affidavit. The court's decision allowed for procedural flexibility while ensuring that the plaintiff's rights were not prejudiced.

Orders

Orders of the court

That the defendant have leave to amend the defence by adding paragraphs 5 and 9 as set out in the draft amended defence which is annexure “F” to the affidavit of Ana Forster affirmed on 23 February 2005.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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