Court Rejects Late Inclusion of Statutory Defence

The Supreme Court considered, and duly rejected, a late application for pleading a statutory bar against the Nominal Defendant from seeking contribution in Jausnik v Nominal Defendant [2015] ACTSC 251.

The primary case was a high profile claim for compensation by an ACT Police Officer from the Nominal Defendant claiming psychological damage, who subsequently sought contribution from an individual police officer and NSW. The Plaintiff and the individual officer arrived on the scene of a motor vehicle accident following a NSW Police pursuit.

The first third party, being the individual officer, has sought to plead a bar under the NSW Police Act protecting individual members against personal liable:

Section 213 of the Police Act 1990 (NSW) (‘Police Act’) provides:

213  Protection from personal liability

A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten).

This bar wasn’t pleaded until late in the game (after pleadings closed and even settlement) so the Court naturally turned to the Court Procedures Rules and our old friend Aon Risk. Particular points that were drawn from Aon include;

  • First, generally speaking where a discretion is sought to be exercised in favour of one party and to the disadvantage of another, an explanation will be called for so as to permit the circumstances giving rise to the amendments to be weighed in the discretionary balance: [103]
  • Parties have a right to bring proceedings but have to make choices as to what claims are made and how they will be framed and prosecuted.  Limits will be placed on the ability to change the case they wish to run.  That is why in seeking the just resolution of the dispute, reference is made to the parties having sufficient opportunity to identify the issues they seek to agitate: [112].
  • The reference in the Rules to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore a just resolution to an application for leave to amend.  It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings upon the payment of costs.

Ultimately Associate Justice Mossop was reasonably scathing of the application to amend and include the statutory defence. Mossop AsJ noted that the application was “extremely late”, making the application was “wholly attributable to lack of thoroughness in the [first third party’s] camp” (read professional liability claim), the amendment would create a complete defence and the amendment would essentially require reopening the question of liability including lengthy adjournments [38].

Aon Risk is essential reading for anyone hoping to conduct commercial litigation or wishing to challenge the Fourth Horseman to a game of chess. Like playing Death in Chess, commercial litigation requires punters to not commence anything without being thoroughly aware and prepared, and to have planned at least 3 moves ahead at all times if not able to win in 6.

Bankrupts: Top 3 ACT Suburbs

The Australian Financial Security Authority (AFSA) have released national bankruptcy data for only the third time and the results are mildly interesting.

Adjusted per capita, the naughtiest debtors in Australia live in Newcastle West (NSW) with 1 in 75 people being declared bankrupt, Ilfracombe in outback Qld in second with 1 in 80 people and then Bumberrah and Johnsonville (VIC) bringing up third with 1 in 94 people.

For the ACT, there was one debtor per 733 adults in ACT in 2013–14, compared with 546 adults in Australia. This is below the national average and actually represents a slight dip for the ACT when adjusted for an increase in population over the last 4 years.

The most violent trend is the number of Territorians entering into (Part IX) Debt Agreements which has been increasing rapidly with almost double as many debtors compared to 2010 levels (190 vs 100).


Top 3 postcodes with the highest proportion of debtors:

2914 – Gungahlin – 28 bankrupts equalling 1 in 332 people

2606 – Woden – 17 bankrupts equalling 1 in 391 people

2913 – Gungahlin – 45 bankrupts equalling 1 in 412 people

Top 3 postcodes in relation to highest number of bankrupts:

2615 – Belconnen – 54 bankrupts equalling 1 in 608 people

2913 – Gungahlin – 45 bankrupts equalling 1 in 412 people

2905 – Tuggeranong – 39 bankrupts equalling 1 in 550 people

ACT Bankruptcy Report 2013-2014

Canberra Lawyer Bites the Dust

Continuing a recent spate of disciplinary action aimed at keeping the ACT profession in line, a Canberra Family Law Solicitor has had his name removed from the roll over admitted misuse of client trust funds.

In April 2014, Slater voluntarily disclosed to the ACT Law Society that he had improperly used the trust funds.

An investigation revealed Slater had paid himself about $63,286.50 in advance of any work undertaken for the client, or in excess of work completed.

The matter was referred to the ACT Civil and Administrative Tribunal, which found him guilty of professional misconduct and recommended his name be removed from the roll of legal practitioners.

Slater did not contest the hearings and ACAT also ordered he pay the Law Society’s costs.

The law required the matter then be referred to the Supreme Court, which made the order to remove Slater’s name from the roll, with his consent.

Excerpt courtesy of Michael Inman’s Canberra Times article.