Felk Industries Pty. Limited v. Mallett & Anor. [2004] NSWCA 175

Felk Industries Pty. Limited v. Mallett & Anor. [2004] NSWCA 175

Leave to appeal was granted because, although the judgment against the occupier was $71,711.20 and the employer's payment meant that this was the realistic amount in issue, that amount was significant and the occupier had an arguable ground of appeal that it was not in breach of any duty owed to the plaintiff. The plaintiff was also granted leave to cross-appeal against his employer so that he could recover an additional sum if the occupier's appeal succeeded.

Jurisdiction
Australia
Judgment Date
07 June 2004
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal and Leave to Cross Appeal
Outcome
Leave to appeal granted; plaintiff granted leave to cross-appeal against his employer; costs of the application for leave to be costs in the appeal.
Legal Topics
['leave to Appeal' 'apportionment Between Defendants' 'joint Tortfeasors' "occupiers' Liability" 'workplace Injury']
['civil Procedure' 'appeals' 'tort Law'] ['leave to Appeal' 'apportionment Between Defendants' 'joint Tortfeasors' "occupiers' Liability" 'workplace Injury']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal and Leave to Cross Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted where the judgment against the occupier was below the appeal-as-of-right threshold after apportionment between defendants.' 'Whether the occupier had an arguable ground that it was not in breach of any duty owed to the plaintiff because access requirements for servicing a fire extinguisher were within the expected expertise of the service provider.' "Whether the plaintiff should have leave to cross-appeal against his employer if the occupier's appeal succeeded."]

Ratio Decidendi

Leave to appeal was granted because, although the judgment against the occupier was $71,711.20 and the employer's payment meant that this was the realistic amount in issue, that amount was significant and the occupier had an arguable ground of appeal that it was not in breach of any duty owed to the plaintiff. The plaintiff was also granted leave to cross-appeal against his employer so that he could recover an additional sum if the occupier's appeal succeeded.

Court Disposition

Leave to appeal granted; plaintiff granted leave to cross-appeal against his employer; costs of the application for leave to be costs in the appeal.

Orders

  • ['Leave to appeal should be granted.' "The plaintiff should have leave to cross-appeal against his employer, so that he can recover an additional sum if the occupier's appeal is successful." 'The costs of the application for leave are to be costs in the appeal.']