Bird v Bird (No 2)

[2012] NSWSC 646

Supreme Court

New South Wales

Medium Neutral Citation:	Bird v Bird (No 2) [2012] NSWSC 646
Hearing dates:	5 March 2012
Decision date:	05 March 2012
Jurisdiction:	Equity Division
Before:	Rein J
Decision:	The defendants' motions dismissed.
Catchwords:	PROCEDURE - Supreme Court procedure - New South Wales - allegation that proceedings are frivolous and vexatious - first day of hearing not an appropriate time to deal with motion to strike out pleadings; defendants' contentions require examination of all material relied on by the plaintiff which is the process to be embarked on at hearing
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Deborah Michelle Bird (Plaintiff) Warrick Lindsay Bird (First defendant) Rodney David Bird (Second defendant) Herbert James Cannington (Third defendant) Mona Ethel Bird (Fourth defendant)
Representation:	Counsel: J S Drummond (Plaintiff) D E Grieve QC and M K Condon (First and second defendants) C Champion (Third defendant) Solicitors: Wilson & Co Lawyers (Plaintiff) Hills Solicitors (First and second defendants) Middletons (Third defendant)
File Number(s):	SC 2005/262267

ex tempore Judgment

1. The first and second defendants bring a notice of motion dated 29 February 2012 by which they seek to strike out the plaintiff's claim under the Uniform Civil Procedure Rules 2005, Pt 13 r 13.4 as frivolous and vexatious. The matter has been fixed for hearing for seven days commencing today.

1. An affidavit sworn 29 February 2012 in support of that motion of Mr Ralph Keith Charles Ward, the first and second defendants' solicitors, has been read. The third defendant joins in the application by their notice of motion dated 1 March 2012 and in support reads an affidavit sworn 1 March 2012 of Mr Toby Blyth, who basically adopts the affidavit of Mr Ward. The motions are opposed by the plaintiff, for whom Mr John Drummond of counsel acts.

1. Mr Donald Grieve QC, with Mr Miles Condon, appears for the first and second defendants and Ms Carmen Champion for the third defendant.

1. I have read the affidavit of Mr Ward and Mr Blyth, and the written submissions in support of the application. I have also heard from Mr Grieve, Ms Champion and Mr Drummond. The defendants contend that the plaintiff's claim is hopelessly flawed. There may or may not be flaws in the plaintiff's case (as the defendants allege) but it is not appropriate to deal with an application such as this at this time of the proceedings. In order to consider that contention, it would be necessary to consider all the material relied on by the plaintiff, not only affidavit evidence but documents which are yet to be tendered in support of the plaintiff's case. Mr Drummond has indicated that he does propose to tender documents. Mr Ward, in his affidavit, proffers his view about the purport of the plaintiff's affidavits, which only serve to demonstrate that the Court could not determine the matter without reading all of the material relied on by the plaintiffs which is the process which will have to be embarked on at the trial.

1. I do not think that s 56 of the Civil Procedure Act 2005, which encourages the Courts to ensure a speedy and just approach to litigation and in respect of which a number of cases have dealt since it was adopted, requires the Court to now determine whether or not there is in effect a prima facie case before the case can continue. The matter was fixed for hearing a long time ago and I think there is no sufficient basis indicated to strike out the pleadings as frivolous, vexatious or an abuse of process.

1. The first, second and third defendants will have to pay the costs of the motions.

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