Practice & Procedure

Preliminary discovery

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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Police powers and duties: incoherence and incompatibility; Summary dismissal

CIVIL 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 –…

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Appealing against the exercise of a judicial discretion

Elzahed 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…

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Contempt

CONTEMPT – contempt of court – improper pressure – interference with the administration of justice as a continuing process

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Apprehended bias

apprehended 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

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Professional liability, limitation periods and summary dismissal

(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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Abuse of process

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…

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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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