Abram v National Australia Bank - [2006] NSWSC 1409

CITATION: ABRAM v. NATIONAL AUSTRALIA BANK [2006] NSWSC 1409

HEARING DATE(S): 19 July 2006

JUDGMENT DATE :
20 December 2006

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: (a) The plaintiff is to lodge with my associate and to serve a copy upon the defendant’s solicitors on or before 4.00 pm, Monday 29 January 2007 a document which identifies:- (i) The person or persons acting on behalf of the defendant who it is alleged acted without reasonable and probable cause in the first defendant’s institution or continuation of the contempt proceedings. (ii) The basis or grounds upon which it is alleged that such officers acted without reasonable or probable cause in the first defendant’s institution or continuation of the proceedings. (iii) The identity of the employee(s) or officer(s) of the first defendant who is said to have been actuated by an improper purpose. (iv) The basis or grounds upon which it is alleged that any employee or officer of the first defendant was actuated by improper purpose or acted with malice. (b) The plaintiff is to lodge, by 4.00 pm, Monday 29 January 2007, a list of documents relied upon as evidence in relation to any issue referred to in (ii) and (iv). (c) The plaintiff is to provide, by 4.00 pm, Monday 29 January 2007, to the defendant’s solicitors a bundle a documents which he proposes to rely upon in relation to the issues referred to in (ii) and (iv). (d) The plaintiff is to file and serve, by 4.00 pm, Monday 29 January 2007, all or any affidavits containing evidence which he would seek to rely upon in the proceedings. (e) I order that the plaintiff’s proceedings stand dismissed if the plaintiff fails to comply with the orders (a) to (d) above. (f) I grant leave to the parties for the proceedings to be re-listed on seven day’s notice. (g) I grant leave to the defendant to make application in respect of the costs previously reserved in respect of the adjournment of the proceedings on 27 February 2006, the costs of the plaintiff’s notice of motion filed on 7 March 2006, the costs of the proceedings of 3, 7 and 13 March 2006 and the costs of the defendant’s notice of motion for dismissal of the proceedings dated 30 June 2006.

CATCHWORDS: PROCEDURE – miscellaneous procedural matters – malicious prosecution proceedings – plaintiff unrepresented – withdrawal of consent to trial without jury – plaintiff not tricked into giving his consent – no extraordinary circumstance warranting revocation of the consent order – motion for dismissal of proceedings for want of prosecution – proceedings not dismissed – self-executing orders made with consequence that non-compliance will render proceedings dismissed.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Supreme Court Act 1970 (NSW)
Courts Legislation Amendment (Civil Juries) Act 2001 (NSW)

CASES CITED: Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1030
Walton v. Gardiner (1993) 177 CLR 378 at 409

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Abram v National Australia Bank and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 1409
Decision Date: 20 December 2006

CaseChat Overview and Summary

In the matter of Abram v National Australia Bank, the court considered the procedural issues surrounding the plaintiff's withdrawal of his consent to a trial without a jury and the subsequent motion for dismissal of the proceedings for want of prosecution. The plaintiff, Abram, had commenced malicious prosecution proceedings against the defendant, National Australia Bank. The plaintiff was unrepresented and had previously given his consent to a trial without a jury. However, he later sought to withdraw this consent, a motion which the court had to consider in the context of whether the plaintiff had been tricked into giving his consent and whether there were any extraordinary circumstances that warranted the revocation of the consent order.

The court had to determine whether the plaintiff's withdrawal of consent to a trial without a jury was valid and whether it was appropriate to dismiss the proceedings for want of prosecution. The central legal issues involved the validity of the plaintiff's consent, the presence of any extraordinary circumstances justifying the revocation of the consent order, and the appropriate course of action in light of the plaintiff's procedural choices. The court examined the procedural history and the plaintiff's conduct to assess whether there were any grounds for dismissing the proceedings.

After considering the evidence and arguments, the court concluded that the plaintiff had not been tricked into giving his consent and that there were no extraordinary circumstances that would warrant the revocation of the consent order. Consequently, the court refused to allow the plaintiff to withdraw his consent. Regarding the motion for dismissal of the proceedings for want of prosecution, the court found that while the plaintiff's conduct had been problematic, the circumstances did not justify dismissal. Instead, the court issued self-executing orders that made it clear that any further non-compliance would result in the dismissal of the proceedings. This decision underscores the importance of procedural diligence and the consequences of non-compliance in legal proceedings.

Orders