RTA v Capelo; Cremona v Capelo & Anor [2004] NSWSC 721

New South Wales Supreme Court

CITATION : RTA v Capelo; Cremona v Capelo & Anor [2004] NSWSC 721 HEARING DATE(S) : 02/08/04 03/08/04 JUDGMENT DATE : 12 August 2004 JURISDICTION: Common Law Division JUDGMENT OF : Kirby J DECISION : 1. The Notice of Motion by Mr Capelo for summary dismissal of the cross claim by the RTA is dismissed; 2. Mr Capelo should pay the costs of the RTA in respect of that Motion; 3. The Motion by the RTA to amend the cross claim to add a count in contract is allowed; 4. The RTA should, thereafter, within 28 days of the amendment having been made, and no later than 56 days from the date of this judgment, discontinue the proceedings 20200/01, paying the costs of Mr Capelo to be agreed or taxed; 5. The costs of the Motion for amendment of the cross claim should be costs in the cause.

CATCHWORDS : Application for summary judgment - unsafe system of RTA - whether driver also arguably a concurrent tort feasor - application to amend cross claim to add contract count - whether amendment would be futile. Compensation to Relatives Act 1897 Occupational Health and Safety Act 1983 LEGISLATION CITED : Motor Accidents Act 1988 Supreme Court Act 1970 Law Reform (Miscellaneous Provisions) Act 1946 Transport Administration Act 1988 General Steel Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : Kim v Cole (2002) Aust Torts Reports 81-662 Horton v Jones (1939) 39 SR (NSW) 305 20200/01 Roads & Traffic Authority (Pl) Jose Antonio Capelo (Def) PARTIES : 20292/03 Minna Maarit Cremona (Pl) Jose Antonio Capelo (1st Def/Cross Def) Roads & Traffic Authority (2nd Def/Cross Claim)