Australia: At The Court House

Last Updated: 10 July 2009
Article by James Bruun

Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC & Ors [2009] SASC 95

This case considered whether determinations made by an expert under a contract were enforceable.

Abigroup Contractors Pty Ltd (Abigroup) contracted with Hardesty and Hanover International (HHI) to provide construction support services and design services. Issues arose between the parties and an attempt to resolve those issues by way of a mediation was unsuccessful.

HHI sought to invoke an expert determination of the dispute provided for in the contract. HHI unilaterally submitted a series of individual disputes to an appointed expert who determined that he had jurisdiction and made a number of determinations which HHI claimed were final and binding.

Abigroup disputed the jurisdiction of the expert to hear and determine the matters referred to him. Abigroup complained that the matters referred to the expert did not correspond with the actual dispute between the parties at the mediation. It argued that the disputes referred to the expert were contrived disputes which had never been properly notified in accordance with the contract. It argued that HHI contrived to bring each dispute within the boundaries of the expert's jurisdiction, which relevantly was limited to any disputes under AU$500,000.

Justice Anderson found that the expert was presented with disputes which were contrived and quite different from those mediated. They were contrived to come under the limit of AU$500,000 to fit the terms of the contract. Justice Anderson determined that what occurred in this case was not in accordance with the terms of the contract designed to provide a quick and contemporaneous method of disposing of disputes as they occurred. The expert determinations were held to be not enforceable.

Martin v Hann & Ors [2009] SADC 23

This claim arose from personal injuries sustained by the claimant, Ms Martin, in December 2002 while assisting with the unloading of goods from a refrigerated semi-trailer. During unloading, Ms Martin was standing on the roadway at the rear of the trailer when one of the rear doors blew shut, striking her forcefully on the back of her head.

Ms Martin sued both Hann's Polar Transport as the owner of the refrigerated trailer and the truck driver personally (whom Ms Martin was assisting with the unloading of goods) who was the owner of the prime mover which had been used to tow the trailer.

The driver, Mr Hann, held a commercial vehicle insurance policy for his prime mover and submitted a claim on that policy. Mr Hann's insurer denied indemnity on the basis that it denied that the refrigerated trailer was attached to Mr Hann's prime mover at the time of the incident. The insurer argued that the unloading of the refrigerated trailer by Mr Hann did not amount to the use of the prime mover within the meaning of the policy.

In the alternative, the insurer argued that even if the trailer was attached, the trailer itself did not fall within the definition of 'your motor vehicle' required by the relevant policy. Judge Muecke was prepared to find that the trailer was attached to the prime mover at the time of unloading. The judge had no reservations in finding that the unloading of goods off the trailer attached to Mr Hann's prime mover was an event where Mr Hann was using his motor vehicle and that any injuries suffered by Ms Martin arose from such use.

Finally, the insurer submitted that this claim insofar as it related to the prime mover was a claim which fell within Mr Hann's compulsory third party (CTP) insurance under the Motor Vehicles Act 1959 (SA) (the Act). Mr Hann had made a claim on his CTP insurance policy but it had been denied on the basis that any injuries suffered were not as a consequence of driving the prime mover or any other circumstances referred to in the relevant section of the Act.

Elliott & Anor v Andrew [2009] SADC 31

In this case, as a result of the facts being contested, the Court was required to closely examine the issue of standard of proof and the accepted method of approach to the question of whether a matter has been proved on the balance of probabilities.

The plaintiff, Mr Elliott, was rendered a paraplegic after falling from his motorcycle. He alleged that his accident was caused by a border collie owned by the defendant, Ms Andrew who lived at a nearby property. Ms Andrew denied this allegation.

There were no eyewitnesses to Mr Elliott's fall from the motorcycle, although a number of people attended the scene shortly afterwards. There was a contest as to the identity of the dog and to the way in which Mr Elliott came off the motorcycle.

A central issue for the Court was whether Mr Elliott had proved his allegations on the balance of probabilities. On this point, the Court held that there were two fundamental matters that Mr Elliott had to establish. First, that his injuries were caused by a dog and second, that the 'offending' dog was Ms Andrew's border collie.

Ms Andrew referred to Briginshaw v Briginshaw [1938] HCA 34 where the High Court stated, with regard to the normal onus in civil cases, that where proof on the balance of probabilities is required, a Court should feel an actual persuasion of the occurrence or existence of the matter in issue. Citing a number of authorities Ms Andrew argued that a plaintiff must prove facts which form a reasonable basis from which a definite conclusion may be drawn.

Applying this criterion, Judge Clayton stated there should be evidence giving rise to 'an actual persuasion' that Ms Andrew's dog caused or materially contributed to Mr Elliott's injuries. Judge Clayton looked in detail at the location of the accident as well as the background circumstances and found that there was no evidence which provided 'an actual persuasion' that Mr Elliott's injuries were materially contributed to by the actions of Ms Andrew's dog. The Court found that Ms Andrew's dog was by her side at the time of Mr Elliott's accident. Accordingly it was not necessary for the judge to make a finding as to how Mr Elliott fell off the motorcycle.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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