Practice & Procedure
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…
Read More[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…
Read More[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…
Read MoreAPPEALS – 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…
Read MoreCIVIL PROCEDURE – summary disposal – dismissal of proceedings – primary judge summarily dismissed proceedings on basis that defendant did not owe plaintiffs a duty of care – where weight of current authority against existence of duty of care – where argument available that common law should be extended to recognise duty of care –…
Read MoreElzahed v State of New South Wales [2018] NSWCA 103 When a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on the party who contends on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to…
Read Moreapprehended bias – whether comments and questions by sentencing judge during applicant’s trial, a co-offender’s trial, and sentencing hearings gave rise to reasonable apprehension of bias – application for recusal rejected – whether sentencing judgment should be set aside
Read More(1) The respondent’s causes of action accrued once the impact of the settlement of the first WC claim became “known or apparent”. According to his pleaded and particularised case, that occurred on or around the date of his knee surgery in November 2007, at which time he suffered measurable damage for the purposes of both his…
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