Dillon v Boland; Dillon v Cush

[2012] NSWCA 364

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dillon v Boland; Dillon v Cush [2012] NSWCA 364

Hearing dates:

30 October 2012

Decision date:

30 October 2012

Before:

Allsop P at [1], [13]
McColl JA at [12]

Decision:

Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

LEAVE TO APPEAL - amendment to pleadings - delay between oral delivery of reasons and provision of revised judgment - consequent delay in application for leave to appeal - need for practitioners to take notes in court - danger to long-established trial dates caused by delay in application for leave - leave refused

Cases Cited:

Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287

Category:

Principal judgment

Parties:

2012/248320: Meryl Lurline Dillon (Applicant)
Leslie Francis Boland (Respondent)

2012/248327: Meryl Lurline Dillon (Applicant)
Amanda Cush (Respondent)

Representation:

G O'L Reynolds SC, M J Lewis (Applicant)
T Alexis SC, M R Cairns (Respondents)
Banki Haddock Fiora (Applicant)
Cole and Butler (Respondents)

File Number(s):

2012/248320 2012/248327

 Decision under appeal 

Date of Decision:

2012-07-13 00:00:00

Before:

Charteris DCJ

File Number(s):

2006/296390
2006/296572

Judgment

1. ALLSOP P: This is an application for leave to appeal against orders made by a judge of the District Court on 13 July 2012 permitting an amendment to replies that plead malice. The history of the litigation in this matter involves an appeal to the Court of Appeal and then to the High Court from an original hearing in the District Court in 2009. The appeal to the High Court was dismissed and the matter was remitted for a further trial on the question of malice. The proceedings were initially listed earlier this year before the District Court judge who heard the matter at the first hearing. That listing was in February of this year.

1. On that occasion that judge, Elkaim DCJ, ordered that the plaintiffs file and serve any further amended replies by the end of February. This order was made without prejudice to the rights of the defendant to object to the amendment to the replies. Further amended replies were filed and served and objection was duly taken. The objections were reduced to a form reflected in a solicitor's letter dated 15 May 2012.

1. Argument took place before another District Court judge, Charteris DCJ (who is to be the trial judge), on 17 May 2012. His Honour reserved his decision. On 13 July 2012 he delivered reasons for judgment allowing the amendments. The delivery of reasons was oral. It is sufficient to indicate at this point that the amendments…