Agnello v Maliganis Edwards Johnson

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Agnello v Maliganis Edwards Johnson

Citation: 

[2024] ACTSC 106

Hearing Date: 

11 April 2024

Decision Date: 

11 April 2024

Before:

Mossop J

Decision: 

1. Pursuant to rr 6704(2) and (3) of the Court Procedures Rules 2006 (ACT), the requirements on the defendant under rr 6704(2)(a) and (2)(b) are dispensed with in relation to exhibit NB 1 to the affidavit of Nancy Barakat dated 10 April 2024, on the condition that the exhibit is disclosed to the plaintiff no later than the commencement of the plaintiff’s re-examination at the trial.

2.    Prior to the conclusion of the evidence of the plaintiff at the trial, the application in proceeding dated 10 April 2024, the affidavit of Nancy Barakat dated 10 April 2024 and exhibit NB 1 to that affidavit are to be kept in an envelope on the court file which is only to be opened if the court orders it to be opened.

3.    The costs of the application are reserved.

Catchwords: 

PRACTICE AND PROCEDURE – EVIDENCE – Ex parte application to dispense with disclosure requirements in r 6704 Court Procedures Rules 2006 (ACT) – uncertainty in interpretation of r 6704 – not appropriate to resolve in ex parte proceedings – personal injury proceedings involving issue about plaintiff’s work capacity – material the subject of the application significant for testing plaintiff’s evidence and credibility – disclosure requirements dispensed with

Legislation Cited: 

Court Procedures Rules 2006 (ACT), rr 611, 6704

Uniform Civil Procedure Rules 1999 (Qld), r 393

Uniform Civil Procedure Rules 2005 (NSW), r 31.10

Cases Cited: 

Catanzariti v Muller [2017] ACTSC 365

Coster v Bathgate [2005] QCA 210; 2 Qd R 496

Insurance Australia Limited t/as NRMA Insurance [2017] ACTSC 361

Parties: 

Maliganis Edwards Johnson ( Applicant)

Representation: 

Counsel

J Whealing ( Applicant)

Solicitors

McInnes Wilson Lawyers ( Applicant)

File Number:

SC 77 of 2023

MOSSOP J:  

1․These proceedings involve a claim for negligence against a firm of solicitors. The plaintiff settled workers’ compensation proceedings. He claims that the advice that he was given about his claim and about the proposed settlement was negligent. He claims that, as at the date of settlement, his condition had not settled and that, in those circumstances, had he been properly advised, he would not have settled the proceedings for the amount that he did. He has subsequently undergone a number of very significant back operations. He alleges total incapacity for work. The extent of his work capacity, if any, is likely to be a matter of significance at the hearing.

2․This is an application for an order under r 6704 of the Court Procedures Rules 2006 (ACT) that the requirements of subrule (2) be dispensed with. Subrule (2) requires a party who intends to tender a plan, photograph, video or audio recording or model at a trial to allow all other parties to inspect the thing and agree to its submission without proof. An application to depart from this rule does not need…