Practice & Procedure

Review of single appellate judge orders by full court

Supreme Court Act, 1970 46   Powers of Judge of Appeal (1)  A Judge of Appeal may exercise the powers of the Court of Appeal:        (a)  to give any judgment by consent or make any order by consent,        (b)  to dismiss an appeal or other proceedings for want of prosecution or for other…

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Variation of orders

PRODEDURE – application for variation of orders made on appeal – where appeal court awarded damages contingently assessed by trial judge – back-dating of judgment – pre-judgment interest – indemnity costs – Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) and (3C) – where notice of motion out of time – delay caused by oversight in…

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Service of later medical reports

ROFESSIONAL CONDUCT – LAWYERS – Where first defendant’s solicitors failed to serve a supplementary medical report until day before trial – whether statements made to and correspondence with other parties in relation to report was misleading – solicitors subject to a duty not to make misleading statements to other parties – whether affidavit of defendant’s…

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Abuse of process

PRACTICE AND PROCEDURE – abuse of process – unconditional discontinuance proceedings in different court involving same substratum of fact – whether abuse of process operates against person not party to earlier proceeding – where earlier proceeding not decided upon merits – opportunity to make claims in earlier proceedings – oppression or unfairness

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Communication with the Court

John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 [12] The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL [1986] HCA 39;  (1986) 161…

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Appeal from District Court on seperate determination of liability

Damjanovic v. Sharpe Hume & Co. (Services) Pty. Ltd, .Damjanofic v. York Agencies Pty. Ltd., Damjanovic v. Rosier & Ors, Damjanovic v. Z. Spehar, Damjanovic v. I. Spehar [2001] NSWCA 130 3   The question of fact which was determined giving rise to the dismissal of the proceedings was essentially whether a signature of the plaintiff on…

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Pleadings – their purpose

In Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44 at [20] – [21] Hodgson JA said, inter alia: “The general requirement to avoid surprise means that material facts must be stated in such a way that the defending can understand the materiality of the facts, that is, how they relate to a…

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Pleadings – form

Bryson J in Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep): It is not fair to require a defendant to flesh out general expressions or indirect allusions by piecing together information in other documents such as affidavits or experts’ reports. He might get it wrong, and the greater the complexities are, the more…

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