Ylisalo v Moodie - [2019] ACTMC 36

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ylisalo v Moodie & Ors
Citation:	[2019] ACTMC 36
Hearing Date:	30 October 2019
DecisionDate:	27 November 2019
Before:	Special Magistrate McCarthy
Decision:	See [68]
Catchwords:	PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – application alleging failure to provide documents pursuant to s 68(1)(a)(i) of the Civil Law (Wrongs) Act 2002 (ACT) – whether documents produced were “about the accident” within the meaning of s 68(1)(a)(i) – whether the first defendant breached s 68(1)(a)(i) by late production of documents – application dismissed PRACTICE AND PROCEDURE – application for summary judgment – strike out – whether threshold for summary judgment is met – where plaintiff’s claim against first defendant gives rise to a real question to be determined – application dismissed PRACTICE AND PROCEDURE – application for summary judgment – strike out – where second defendant did not exist at the time of the accident – consideration of possible pre-incorporation contract – consideration of plaintiff’s potential future claim being statute barred – plaintiff’s claim against second defendant struck out
Legislation Cited:	Associations Incorporation Act 2009 (NSW) s 27 Civil Law (Wrongs) Act 2002 (ACT) ss 68, 214 Companion Animals Act 1998 (NSW) Corporations Act 2001 (Cth) s 131 Court Procedures Rules 2006 (ACT) r 425 Domestic Animals Act 2000 (ACT) s 55 Limitation Act 1985 (ACT) s 16B Personal Injuries Proceedings Act 2002 (Qld) s 27
Cases Cited:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 Connell v Australian Capital Territory [2019] ACTSC 307 DJ v RHS [2004] ACTSC 12; 182 FLR 76 Galea v Gillingham [1986] 2 Qd R 365 Haug v Jupiters Ltd [2007] QCA 199; [2008] 1 Qd R 276 Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 Howard v Lapwood [2018] ACAT 123 Whithear v Australian Capital Territory [2019] ACTSC 195
Texts Cited:	R P Austin & I M Ramsay, Ford’s Principles of Corporations Law (LexisNexis Butterworths, 15^th ed, 2013) Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002)
Parties:	Lisa Ylisalo (Plaintiff) Debra Moodie (First Defendant) Pound Rescue Incorporated (Second Defendant) Brent Trenear (Third Defendant)
Representation:	Counsel D Richards (Plaintiff) W Sharwood (First Defendant) A Costin (Second Defendant)
Solicitors Maliganis Edwards Johnson (Plaintiff) Elringtons (First and Second Defendants)
File Number(s):	CS 167 of 2019

SPECIAL MAGISTRATE McCARTHY:

By statement of claim dated 1 August 2019, the plaintiff alleges that on 4 August 2016 she was walking her dog on a pedestrian footpath in the suburb of Rivett. She alleges that another dog, later identified as a Staffordshire Bull Terrier with the unfortunate name “Lucky”,[1] was walking on the footpath without any care, control or supervision. The plaintiff alleges that Lucky attacked her dog, and then bit her while she was attempting to protect her dog and herself from Lucky.
[1] Affidavit of Deborah Moodie affirmed 15 October 2019, annexure "F".

The…

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 Ylisalo v Moodie

Details

AGLC: Ylisalo v Moodie [2019] ACTMC 36
Case: [2019] ACTMC 36
Decision Date: 27 November 2019

CaseChat Overview and Summary

The applicant, Ylisalo, sought an order under section 68(1)(a)(i) of the Civil Law (Wrongs) Act 2002 (ACT) for the production of documents from the first defendant, Moodie, in relation to an accident that allegedly occurred. The dispute centred on whether the documents provided were relevant to the accident and whether there was a late production of these documents. The court also considered an application for summary judgment and a strike-out motion concerning the first and second defendants, respectively.

The court was required to determine if the documents produced by the first defendant were indeed "about the accident" and whether there was a breach of the statutory obligation under section 68(1)(a)(i). Additionally, the court had to evaluate whether the threshold for summary judgment was met in the plaintiff’s claim against the first defendant, considering if there was a genuine issue to be tried. The court also needed to address the validity of the claim against the second defendant, who did not exist at the time of the accident, and whether a potential pre-incorporation contract could be considered, as well as if the plaintiff's claim was statute-barred.

The court found that the documents produced by the first defendant were relevant to the accident and, despite being late, did not warrant an order under section 68(1)(a)(i). The court also determined that the plaintiff's claim against the first defendant raised a real question to be determined, thus dismissing the application for summary judgment. Regarding the second defendant, the court concluded that as the company did not exist at the time of the accident, the claim was statute-barred and struck out the claim against the second defendant.

The court dismissed the application for an order under section 68(1)(a)(i) of the Civil Law (Wrongs) Act 2002 (ACT), dismissed the application for summary judgment, and struck out the claim against the second defendant.

Orders

Orders of the court

See [68]

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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