Category: Practice & Procedure
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Limitation defence issues
Mid North Coast Local Health District v Hickson [2019] NSWCA 165 APPEAL – practice and procedure – appeal from judgement on a review reversing interlocutory decision of Registrar – application of principle of restraint in review of discretionary decision as to practice and procedure PROCEDURE – interrogatories – personal injury claim – defendant’s application to…
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Preliminary discovery
[43] Determination of an application for preliminary discovery under UCPR r 5.3 does not involve determination of the merits of any claim for relief an applicant might propound: O’Connor v O’Connor [2018] NSWCA 214 at [76]. Such applications are summary in nature and not mini-trials, and the use of such applications as dress rehearsals for a trial have rightly been deprecated: Pfizer…
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Notices to admit
Gerard Michael Mcguirk v the State of New SouthWales [2009] NSWSC 616 [16] As to paras 1 and 5, Mr Hutchingspointed out that the relationship between the plaintiff and Ms Buchanan andtheir movements on the evening prior to the first arrest are not matters withinthe knowledge of the defendant and, accordingly, should not be the subject ofadmission.…
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Cross-examination on an interlocutory application
Markisic v Commonwealth of Australia [2010] NSWCA 273 32 Whether or not a judge permits cross-examination in an interlocutory proceeding is a matter for that judge’s discretion. An appellate court will only interfere with a discretionary decision if an error of the kind referred to in House v R [1936] HCA 40; (1936) 55 CLR…
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The function of pleadings
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2026/22.html#_Ref223681247 The pleadings are to contain a summary of the material facts, not the evidence by which those facts are to be proved: UCPR, r 14.7. Material facts should be pleaded, not merely identified in the particulars. Doing so can also be to the plaintiff’s strategic advantage. A defendant need not plead to particulars: Pinson v Lloyds…
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Summary dismissal under r 13.4
Mills v Dunpec Pty Ltd [2024] NSWSC 340 Chen J A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v…
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Separate determination of questions
Mills v Dunpec Pty Ltd [2024] NSWSC 340 Chen J The relevant principles relating to the power to order a separate determination have been summarised in a number of cases, including Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [87]-[97]. They have also been helpfully summarised in Crawley v…
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BGC Securities (Australia) Pty Limited v Shillington: preliminary discovery
BGC Securities (Australia) Pty Limited v Shillington [2022] NSWSC 611 Legal principles 5.3 Discovery of documents from prospective defendant (1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable…
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Chalak v G & G Mikhael Pty Ltd: summary dismissal
Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116 15. The constraints on granting summary disposal stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [2] have been applied in both contexts. Barwick CJ stated: “It is sufficient for me to say that these cases uniformly adhere to…
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Jandson Pty Ltd v Edmonds: slip rule
Jandson Pty Ltd v Edmonds [2022] NSWCA 61 The Court held (Bell CJ, Macfarlan and White JJA agreeing), refusing leave to appeal with costs, that in circumstances where a judge has or is said to have overlooked a particular argument of a party, it is open to that party pursuant to r 36.16 of the…