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Cairns v Freeman

Cairns v Freeman

Case [2008] NSWSC 792 6 June 2008

Appeal

Standing

Admissibility of Evidence

Res Judicata

Issue Estoppel

Compensatory Damages

Civil Litigation & Procedure

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CITATION: Cairns v Freeman & ors [2008] NSWSC 792

HEARING DATE(S): 6 June 2008

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 6 June 2008

DECISION: Appeal allowed, orders of Associate Judge for summary dismissal set aside; part of pleading struck out with leave to replead; third defendant to pay costs of proceedings before Associate Judge. Costs of appeal to be plaintiff’s costs in the proceedings.

CATCHWORDS: COSTS – default application to strike out defence for default of directions to serve affidavits – where default since remedied – application premature - PROCEDURE – APPEALS – appeal from decision of Associate Judge summarily dismissing claim – whether the Associate Judge erred in acceding to third defendant's application for dismissal on a ground not advanced by the third defendant – whether the Associate Judge erred in finding that the statement of claim did not plead a cause of action – whether the Associate Judge exceeded the assistance permitted to be given to an unrepresented litigant by raising an argument not advanced by the third defendant – whether the Associate Judge erred by refusing the plaintiff an opportunity to replead a cause of action where the third defendant allegedly did not oppose such a course – whether the Associate Judge of his own motion was entitled to decide whether the pleadings disclosed a reasonable cause of action – whether the Associate Judge erred in not acting on an assertion of fact made by counsel from the bar table in the absence of admitted evidence – whether the Associate Judge erred in finding that there was no evidence that demonstrated a reasonable prospect of success – where plaintiff is an executrix and does not possess relevant evidence herself – what evidence required to disclose a reasonable prospect of success – where the Associate Judge re-opened the trial pursuant Uniform Civil Procedure Rules, r. 36.16, to consider further evidence of the plaintiff – whether the Associate Judge erred in rejecting the tender of an affidavit file in another proceeding - COSTS – where plaintiff succeeded on only one of eight grounds of appeal, and plaintiff’s case salvaged on re-opening.

LEGISLATION CITED: (NSW) Supreme Court Act 1970, s 75A
(NSW) Uniform Civil Procedure Rules, rr 13.4, 14.28, 30.16, 31.9, 36.16, 49.4

CATEGORY: Principal judgment

CASES CITED: House v The King (1936) 55 CLR 499
Spencer v Australian Capital Territory [2007] NSWSC 303; (2007) 13 BPR 24,307
Wickstead v Browne (1992) 30 NSWLR 1

PARTIES: Suzanne Rose Cairns (plaintiff)
Glenn Arthur Freeman (first defendant)
Michael Charles Unicomb (second defendant)
Warren Donald Turner (third defendant)

FILE NUMBER(S): SC 5237/06

COUNSEL: Mr G Curtin (plaintiff)
Mr M Unicomb (in person)
Mr W Turner (in person)

SOLICITORS: Mullane & Lindsay (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday, 6 June 2008

5237/06 Suzanne Rose Cairns v Glenn Arthur Freeman & ors

JUDGMENT (ex tempore)

1 HIS HONOUR: Before me are two motions filed by…

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.

Continue reading Cairns v Freeman

Details

AGLC: Cairns v Freeman [2008] NSWSC 792
Case: [2008] NSWSC 792
Decision Date: 6 June 2008

CaseChat Overview and Summary

In Cairns v Freeman, the dispute arose from a claim made by the plaintiff, who was the executrix of an estate, against several defendants. The plaintiff sought damages and other relief in relation to certain transactions involving the estate. The case was first heard by an Associate Judge who dismissed the plaintiff's claim. The plaintiff then appealed this decision to a higher court.

The appeal raised several legal issues, including whether the Associate Judge had erred in dismissing the claim on a ground not raised by the defendant, and whether the Judge had correctly assessed whether the pleadings disclosed a reasonable cause of action. Additionally, the appeal considered whether the Associate Judge had exceeded the assistance permitted to be given to an unrepresented litigant, and whether the Judge had erred in refusing the plaintiff an opportunity to amend the pleadings. The appeal also examined whether the Associate Judge had acted properly in considering additional evidence and whether the Judge had erred in rejecting an affidavit filed in another proceeding.

The court found that the Associate Judge had indeed erred in several respects. The Judge had dismissed the claim on a ground not raised by the defendant, which was not permissible. Furthermore, the court held that the Judge had not correctly assessed whether the pleadings disclosed a reasonable cause of action and had exceeded the permissible assistance to an unrepresented litigant. The court also found that the Judge had erred in not allowing the plaintiff an opportunity to amend the pleadings. However, the court concluded that these errors did not necessarily mean the claim should have been dismissed, and the case was remitted for further proceedings.

The court ordered that the appeal be allowed in part, the dismissal of the claim be set aside, and the matter be remitted to the Associate Judge for further consideration, including the opportunity for the plaintiff to amend the pleadings. The court also directed that costs be awarded to the plaintiff in relation to the successful grounds of appeal.

Orders