Category: Practice & Procedure
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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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Conduct of trial: departing from the pleaded case
I am disinclined to accept Sydney Trains’ pleading point. True it is that Argo should have positively pleaded the conduct on the part of Sydney Trains which, so it alleged, produced the result that that conduct was the sole effective cause of Ms Michael’s injury notwithstanding Infrastruction’s own breach. Argo did not do this, and merely putting causation in issue falls short of what is required: cf Icon Co (NSW)…
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Guardianship and financial management
Secretary, NSW Department of Communities and Justice and Anor v ZYM and Anor [2022] NSWSC 935 Ability One Financial Management and Anor v JB by his tutor AB [2014] NSWSC 245 Holt v Protective Commission (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 Re Managed Estates Remuneration Orders [2014] NSWSC 363 The District Court’s…
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Notices of contention
Fuller v Albert (No 3) [2021] NSWCA 226 [7] At the outset, it needs to be understood that a Notice of Contention – unlike a Notice of Appeal, or a Notice of Motion – is not a process which seeks relief, and does not require disposition in the sense of orders being made pursuant to it, or dismissing it. A…
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What is a “relevant order” under the Federal Courts (State Jurisdiction) Act 1999 (NSW)
Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 Per Bell P; Leeming JA agreeing at [147]; Emmett AJA agreeing at [169]: The order dismissing the Federal Court proceedings for want of jurisdiction was not a “relevant order” for the purposes of s 11(1). When one has regard to the context and purpose of the…