Practice & Procedure

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 / Comments Off on 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

By robert / October 3, 2018 / Comments Off on 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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Commercial claims in the District Court: jurisdiction?

By robert / September 11, 2018 / Comments Off on Commercial claims in the District Court: jurisdiction?
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Appealing against the exercise of a judicial discretion

By robert / May 31, 2018 / Comments Off on 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

By robert / March 30, 2018 / Comments Off on Contempt

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

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Apprehended bias

By robert / February 28, 2018 / Comments Off on 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

By robert / December 5, 2017 / Comments Off on 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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