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Hartland vs. Firm Construction Pty. Ltd. - (10 May 2023)

Unless the court otherwise directs, an originating process must be supported by an affidavit stating the facts in support of the process


Matthew Hartland (Plaintiff) was employed as a carpenter/concreter by Togail Na Heireann Pty Ltd. On 21 May, 2020, he attended a site controlled and occupied by Firm Construction Pty Ltd (Defendant). During a concrete pour, Mr. Hartland sustained concrete burns to his feet and legs. The Defendant has subsequently been placed under external administration. Mr. Hartland therefore needs leave to commence proceedings against the Defendant for damages for personal injuries in the District Court.

The Supreme Court (Corporations) Rules, 2004 (Corporations Rules) stipulate that, unless the court otherwise directs, an originating process must be supported by an affidavit stating the facts in support of the process. The supporting affidavit must annex a record of a search of ASIC records in relation to the defendant, carried out no earlier than seven days before the originating process is filed.

There was no direct evidence of the nature and extent of the Plaintiff's injury at the commencement of proceedings save as to the Plaintiff's solicitors deposing that, the Plaintiff had sustained burns to his legs and feet. The Plaintiff's solicitors subsequently put forth further evidence as to the nature and extent of the Plaintiff's injury. Having regard to the affidavit material, present Court is satisfied that, the Plaintiff has demonstrated that there is a serious question to be tried.

Against the nature and seriousness of the Plaintiff's claim, present Court have weighed up the status of the Defendant, a company under external administration. There is no evidence of any prospect of surplus assets in the Defendant, a factor which would be a good reason to refuse leave. However, in present case, there is evidence of a relevant insurance policy. There is also evidence that the defendant's insurer has been put on notice of the Plaintiff's proposed claim by way of letter dated 13 March, 2023. There is a serious question to be tried. In the absence of any evidence about the assets held by the liquidator and potential claims by creditors, the evidence in relation to the availability of insurance favours leave being granted.


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