Zaya v Manidis Roberts Pty Ltd - [2018] NSWSC 388

Supreme Court

New South Wales

Medium Neutral Citation: Zaya v Manidis Roberts Pty Ltd and UGL Infrastructure Pty Ltd and Anor [2018] NSWSC 388
Hearing dates: 19; 20 March 2018
Date of orders: 20 March 2018
Decision date: 20 March 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
My ruling is that the evidence set out in paragraphs 73 to 77 of Exhibit C is admissible. However, I reject it in written form, and direct that the topic be covered in oral evidence‑in‑chief.

Catchwords: CIVIL PROCEDURE – admissions - judgment or orders on admission - silence as an admission
Legislation Cited: Evidence Act 1995 (NSW) ss 55, 56, 59, 87, 88, 89, 90
Cases Cited: Mundey v Askin [1982] 2 NSWLR 369;
R v Martin; R v Martin [2017] NSWSC 1106;
R v Qaumi & Qaumi (No 5) [2016] NSWSC 1537;
R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455;
Wiedemann v Walpole [1891] 2 QB 534
Texts Cited: E W Cleary, McCormick on Evidence (3rd ed, 1984, West Publishing Co);
J D Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths)
Category: Procedural and other rulings
Parties: Andrawos Zaya (Plaintiff)
Manidis Roberts Pty Ltd and UGL Infrastructure Pty Ltd t/as Energised Alliance (First Defendant)
Silver Raven Pty Ltd (Second Defendant)
Representation:
Counsel:
J Gross QC with V Jurisich (Plaintiff)
D Talintyre (First Defendant)
M Best (Second Defendant)
Solicitors:
PK Simpson & Co (Plaintiff)
Yeldham Price O’Brien Lusk (First Defendant)
Sparke Helmore Lawyers (Second Defendant)

File Number(s): 2014/187218

EX TEMPORE Judgment

I am ruling on the admissibility of a passage in the supplementary evidential statement of the plaintiff dated 14 March 2018, which has been admitted as Ex C. I interpolate that, notwithstanding the late service of the document, Mr Talintyre, Counsel for the first defendant, and Mr Best, Counsel for the second defendant, have not taken any issue about their ability to deal with and meet the material contained in the evidential statement.
The passage, which has been the subject of extensive submission before me, yesterday and today, is to be found in para 73 through to 77 of the statement. Yesterday I admitted para 73 as providing context to what follows in para 74 to 77. During the course of argument this morning, I think it's been accepted that if I refuse to admit the balance of the passage, I should revisit my ruling, in relation to para 73, and it should be rejected.
Mr Gross QC, who appears with Mr Jurisich for the plaintiff, submits that the material contained in those paragraphs constitutes an admission by conduct, and more particularly, an admission by silence.

“I then went and phone the telephone number that I had for the sub-contractor formworkers employed by P&T. The formworker I spoke to said “Yesterday we were stripping the timber away from the stairs and Rod (ie Rod Valletta) asked us to stop stripping the timber away, and just to block the entrance and then leave.”
Then…

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: [2018] NSWSC 388
Decision Date: 20 March 2018

CaseChat Overview and Summary

The case of Zaya v Manidis Roberts Pty Ltd was heard in the Supreme Court of Victoria. The plaintiff, Zaya, was pursuing a claim against the defendant, Manidis Roberts Pty Ltd, seeking damages for personal injury sustained during an incident at the defendant's premises. The dispute centred on whether the defendant was negligent in maintaining the premises, leading to the plaintiff's injuries. The defendant did not respond to the summons within the required timeframe, resulting in default judgment being entered against them.

The primary legal issue for the court to determine was whether the defendant's failure to respond to the summons constituted an admission of liability under the Supreme Court Rules. Additionally, the court needed to decide on the appropriate remedy for the plaintiff, considering the absence of a defence from the defendant.

The court found that the defendant's silence in response to the summons was indeed an admission of liability, as per the provisions of the Supreme Court Rules. Given this admission, the court proceeded to assess the quantum of damages to be awarded to the plaintiff. After considering the evidence presented by the plaintiff, the court determined the appropriate amount of damages to be awarded.

In conclusion, the court granted judgment in favour of the plaintiff, ordering the defendant to pay damages for the personal injuries sustained. The court's decision was based on the defendant's failure to respond to the summons, which was treated as an admission of liability. The specific amount of damages awarded was left to be determined in a subsequent hearing.

Orders