Category: Practice & Procedure
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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…
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Orford v Dr Lyons: brevity
Orford v Dr Lyons [2020] NSWSC 1022 Finally, and in passing, I wish to make some observations about what regrettably has become the preferred form of statements of claim in medical negligence matters. I apologise to those practitioners who appear regularly in my list who may have heard these comments before. More often than not…
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Studholme v Rawson: s. 56
Studholme v Rawson [2020] NSWCA 76 78 In giving effect to the dictates of Pt 6 of the Civil Procedure Act and the overriding purpose, two important constraints are to be borne in mind. First, Pt 6 does not provide a basis for departing from principles of procedural fairness as generally reflected in rules of…
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“Class actions” – some ground rules
Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia; Whisson v Subaru (Aust) Pty Ltd; Kularathne v Honda Australia Pty Ltd; Brewster v BMW Australia Ltd; Bond v Nissan Motor Co (Australia) Pty Ltd; Coates v Mazda Australia Pty Ltd; Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2020] NSWCA 66 (22…
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You can’t unring a bell but you can un-know a fact
Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 In 2012 Mr Murgolo was a sub-contractor working on a building site at Miranda Public School. On 19 January 2012, Mr Murgolo was injured when two workers were allegedly negligent in failing to secure an acrow prop, which fell and caused an injury to Mr Murgolo’s…
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S 318 Workplace Injury Management Act – “materially different”
Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452 22 The purpose of s 318 of the Workplace Injury Act must be to ensure that claimants and employers properly participate in the pre-filing process required by the Act; that is, the claimant is required to put the defendant on notice of the particulars…
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S 318 Workplace Injury Management Act – “materially different”: particulars of negligence and foreseeability
Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452 22 The purpose of s 318 of the Workplace Injury Act must be to ensure that claimants and employers properly participate in the pre-filing process required by the Act; that is, the claimant is required to put the defendant on notice of the particulars…