Archive for Practice & Procedure

Abuse of process

  1. CGU Insurance Ltd v Watson [2007] NSWCA 301 at [40]:

The Supreme Court has an inherent jurisdiction to prevent abuse of its procedures, and may stay or dismiss proceedings the bringing or continuance of which is an abuse of process. Even if principles of res judicata or Anshun estoppel do not apply, there may be abuse of process in relitigating an issue decided against a party in previous proceedings.

Behaviour at mediation attracting a costs order

COSTS – costs of an abortive mediation – where mediation was court ordered – where the plaintiffs did not attend the mediation – where the plaintiffs did not notify the defendants – costs awarded to the defendants

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Review of single appellate judge orders by full court

Supreme Court Act, 1970

46   Powers of Judge of Appeal
(1)  A Judge of Appeal may exercise the powers of the Court of Appeal:
       (a)  to give any judgment by consent or make any order by consent,
       (b)  to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules,
       (c)  to dismiss an appeal or other proceedings on the application of the appellant or plaintiff, or
       (d)  to deal with costs and other matters incidental to the matters mentioned in paragraphs (a), (b) and (c).
(2)  A Judge of Appeal may exercise the powers of the Court of Appeal:
      (a)  to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or
      (b)  to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.
(3)  Subsection (2) does not authorise a Judge of Appeal to grant or refuse leave to appeal to the Court of Appeal.
(4)  The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal.
(5)  Subject to subsection (4), a judgment, order or direction given or made by a Judge of Appeal is to have effect as a judgment, order or direction of the Court of Appeal, whether or not the judgment, order or direction is within the powers of the Judge of Appeal under this section.

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Variation of orders

PRODEDURE – application for variation of orders made on appeal – where appeal court awarded damages contingently assessed by trial judge – back-dating of judgment – pre-judgment interest – indemnity costs – Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) and (3C) – where notice of motion out of time – delay caused by oversight in solicitor’s office – whether power to dispense with the requirements of the rules – Civil Procedure Act 2005 (NSW) s 14 – limited exceptions to finality of judgments – slip rule – UCPR r 36.17 – back-dating of judgment – UCPR r 36.4(3) – interests of justice 
  

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Changes to expert's code of conduct

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