Sutton v Firth [2007] NSWDC 43

Sutton v Firth [2007] NSWDC 43

The cross-defendants did not show that the cross-claim was so clearly untenable that it could not succeed. The plaintiff's claim against the defendant had a causal or consequential relationship with personal injury, so Civil Liability Act 2002 (NSW) Part 4 did not govern the claim; in any event, apportionment issues required factual determination. The claim for contribution or indemnity under Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5 was arguable because the alleged losses may form part of the same damage, including damage caused by consecutive torts. No relevant workers compensation election was found on the agreement, and if that conclusion were wrong, issues about...

Jurisdiction
Australia
Judgment Date
27 April 2007
Procedural Posture
Civil / Application by Cross Defendants to Strike Out the Cross Claim Under Uniform Civil Procedure Rules 13.4 and 14.28
Outcome
Application dismissed in total; motion to strike out the cross-claim dismissed.
Legal Topics
['strike Out Pleadings' 'no Reasonable Cause of Action' 'contribution and Indemnity Between Tortfeasors' 'civil Liability Act 2002 (nsw) Part 4' 'election to Accept Lump Sum Workers Compensation Benefits' 'solicitor Negligence']
['civil Procedure' 'workers Compensation' 'professional Negligence' 'contribution and Indemnity' 'proportionate Liability'] ['strike Out Pleadings' 'no Reasonable Cause of Action' 'contribution and Indemnity Between Tortfeasors' 'civil Liability Act 2002 (nsw) Part 4' 'election to Accept Lump Sum Workers Compensation Benefits' 'solicitor Negligence']

Case Brief

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Procedural Posture

Civil / Application by Cross Defendants to Strike Out the Cross Claim Under Uniform Civil Procedure Rules 13.4 and 14.28

Legal Issues

  1. 1 ['Whether the cross-claim should be struck out as frivolous or vexatious, disclosing no reasonable cause of action, or an abuse of process under Uniform Civil Procedure Rules 13.4 or 14.28.' 'Whether the defendant/cross-claimant could claim contribution or indemnity under Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5 against the cross-defendants.' 'Whether the claim was governed by the proportionate liability provisions in Civil Liability Act 2002 (NSW) Part 4.' 'Whether any workers compensation election existed and, if so, whether revocation of that election was possible.']

Ratio Decidendi

The cross-defendants did not show that the cross-claim was so clearly untenable that it could not succeed. The plaintiff's claim against the defendant had a causal or consequential relationship with personal injury, so Civil Liability Act 2002 (NSW) Part 4 did not govern the claim; in any event, apportionment issues required factual determination. The claim for contribution or indemnity under Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5 was arguable because the alleged losses may form part of the same damage, including damage caused by consecutive torts. No relevant workers compensation election was found on the agreement, and if that conclusion were wrong, issues about...

Court Disposition

Application dismissed in total; motion to strike out the cross-claim dismissed.

Orders

  • ['Dismiss motion to strike out brought by the cross-defendants.' "Liberty to apply on 48 hours' written notice."]