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Practice & Procedure

“Class actions” – some ground rules

By robertsheldon / April 23, 2020 / Comments Off on “Class actions” – some ground rules

Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia; Whisson v Subaru (Aust) Pty Ltd; Kularathne v Honda Australia Pty Ltd; Brewster v BMW Australia Ltd; Bond v Nissan Motor Co (Australia) Pty Ltd; Coates v Mazda Australia Pty Ltd; Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2020] NSWCA 66 (22…

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You can’t unring a bell but you can un-know a fact

By robertsheldon / December 6, 2019 / Comments Off on You can’t unring a bell but you can un-know a fact

Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 In 2012 Mr Murgolo was a sub-contractor working on a building site at Miranda Public School. On 19 January 2012, Mr Murgolo was injured when two workers were allegedly negligent in failing to secure an acrow prop, which fell and caused an injury to Mr Murgolo’s…

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S 318 Workplace Injury Management Act – “materially different”: particulars of negligence and foreseeability

By robertsheldon / October 25, 2019 / Comments Off on S 318 Workplace Injury Management Act – “materially different”: particulars of negligence and foreseeability

Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452 22 The purpose of s 318 of the Workplace Injury Act must be to ensure that claimants and employers properly participate in the pre-filing process required by the Act; that is, the claimant is required to put the defendant on notice of the particulars…

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Reopening of entered orders

By robertsheldon / September 25, 2019 / Comments Off on Reopening of entered orders

[54] Rule 36.16(3A) was introduced following the change to the procedure for the entering of orders whereby orders will be entered by the court itself on its computerised record. The rule provides a limited opportunity to ameliorate the principle that subject to only limited qualifications an order that finally disposes of proceedings, once entered, cannot…

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Offers of compromise with terms not reflected in final orders

By robertsheldon / September 25, 2019 / Comments Off on Offers of compromise with terms not reflected in final orders

[32] The Offer of Compromise however had some 10 additional terms, examples of which are as follows: “2. The defendant’s motor vehicle third party insurer is authorised to deduct and/or pay from the judgment sum in paragraph 1 the amount of any advance payments or interim payments made for or on behalf of the plaintiff.…

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The meaning and effect of granting liberty to apply

By robertsheldon / September 25, 2019 / Comments Off on The meaning and effect of granting liberty to apply

[20] Nor do I consider that, as the applicant argued, the effect of the grant of liberty to apply was to obviate the need for the applicant to file a notice of motion in accordance with r 36.16. Rather, it contemplated the possibility of an application for variation being made in accordance with the UCPR,…

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Declaration: width

By robertsheldon / September 4, 2019 / Comments Off on Declaration: width

XL Insurance Co SE v BNY Trust Company of Australia Limited [2019] NSWCA 215 114 Courts will usually not make a declaration as to the liability of an insurer to indemnify an insured in circumstances where the liability of the insured to a claimant has not yet been established by judgment: AMP Financial Planning Pty Ltd…

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Leave to appeal

By robertsheldon / June 1, 2019 / Comments Off on Leave to appeal

[28] In PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, this Court made reference to the proper approach of an intermediate appellate court to applications for leave to appeal from interlocutory decisions involving the exercise of discretion on questions of practice and procedure. The Court observed (at [5]) that discretionary decisions “engage the strictures against over-ready appellate…

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Summary dismissal and multiple defendants

By robertsheldon / May 29, 2019 / Comments Off on Summary dismissal and multiple defendants

[6] The primary judge would have been justified in simply refusing to deal with the late application. Although it does not appear that the primary judge was referred to the relevant authorities, it is clearly established by decisions of this Court that if several defendants are sued and the evidence that might be adduced in…

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Preliminary discovery

By robert / October 3, 2018 /

APPEALS – civil procedure – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – where application dismissed for failure to satisfy the Court of entitlement to make a claim for relief – whether dismissal involved a determination of the merits of the claim at an interlocutory stage CIVIL PROCEDURE – preliminary discovery…

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