Falconer v Laird - [2003] NSWCA 114

CITATION: Falconer v Laird [2003] NSWCA 114

HEARING DATE(S): 11 April 2003

JUDGMENT DATE:
15 May 2003

JUDGMENT OF: Handley JA at 1; Beazley JA at 2; Giles JA at 3

DECISION: In Court of Appeal proceedings 40309/02: (1) Grant leave to appeal; (2) Subject to filing the notice of apepal within 14 days, appeal allowed; (3) Set aside the orders made by Delaney DCJ on 25 March 2002 extending the time for applying to rescind the deemed dismissal and rescinding the deemed dismissal and in lieu thereof order that the notice of motion filed on 15 February 2002 be dismissed with costs so far as it claimed those orders; (4) Opponent/respondent pay the costs of the claimant/appellant and have a certificate under the Suitors Fund Act if otherwise qualified. In each of Court of Appeal proceedings 40979/02 and 40980/02 the summons is dismissed with costs.

CATCHWORDS: Actions for personal injuries brought in District Court - one defendant not properly named - statements of claim found not to have been served on defendants - actions not prosecuted in timely manner - no praecipes for trial filed - deemed dismissals under Pt 12 r 4C of the District Court Rules - applications to rectify position as to parties and service and rescind dismissals - whether statements of claim had been served - whether validity of statements of claim for service should be extended - whether dismissals should be rescinded - test of whether fair and just - overwhelming prejudice to defendants in defending plaintiff's claims - applications should be dismissed. D

CASES CITED: Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541;
Harding v Bourke (2000) 48 NSWLR 59;
Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207;
Kessey v Golledge (1999) 40 MVR 95;
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359;
Rust v Barnes (1980) 2 NSWLR 726;
Salido v The Nominal Defendant 32 NSWLR 524;
Williams v The Minister Aboriginal Land Rights Act 1983 (2000) Aust Torts Reports 81-578.

PARTIES :
Irene Falconer v Alexander Laird
Alexander Laird v Mark Lemming
Alexander Laird v Robert Raciti and Leslie Green

FILE NUMBER(S): CA 40309/02; 40979/02; 40980/02

COUNSEL: M R Aldridge SC & J Thompson - Laird
C R R Hoeben SC & J P Sewell - Falconer, Lemming, Raciti and Green

SOLICITORS: Maxwell Berghouse & Ives, Smithfield - Laird
Nevill & Edwards - Falconer, Lemming, Raciti and Green

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 356/86; 357/86; 358/86 (Campbelltown)

LOWER COURT
JUDICIAL OFFICER : Delaney DCJ

CA 40309/02
CA 40979/02
CA 40980/02
DC 356/86 (Campbelltown)
DC 357/86 (Campbelltown)
DC 358/86 (Campbelltown)

HANDLEY JA
BEAZLEY JA
GILES JA
Thursday 15 May 2003

FALCONER v LAIRD & ANOR

LAIRD v LEMMING

LAIRD v RACITI & ANOR

Judgment

1 HANDLEY JA: I agree with Giles JA.

2 BEAZLEY JA: I agree with Giles JA.

3 GILES JA: These are related applications for leave…

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 Falconer v Laird

Details

AGLC: Falconer v Laird [2003] NSWCA 114
Case: [2003] NSWCA 114
Decision Date: 15 May 2003

CaseChat Overview and Summary

In *Falconer v Laird*, the Court of Appeal of New South Wales considered applications to rectify the parties to personal injury actions, extend the validity of statements of claim for service, and rescind deemed dismissals of those actions under Part 12 Rule 4C of the District Court Rules. The central dispute revolved around whether the statements of claim had been properly served on the defendants and, if not, whether the court should exercise its discretion to allow the actions to proceed.

The legal issues before the Court of Appeal were whether the District Court had erred in extending the time for applying to rescind the deemed dismissals and in rescinding those dismissals. This required the court to determine whether the statements of claim had been served, whether the validity of the statements of claim for service should be extended, and ultimately, whether it was fair and just to rescind the dismissals, considering the overwhelming prejudice to the defendants in defending the plaintiff's claims.

The Court of Appeal found that the applications should have been dismissed. The court applied the test of whether it was fair and just to rescind the dismissals, concluding that the prejudice to the defendants was overwhelming. Consequently, the Court of Appeal allowed the appeal, set aside the orders made by the District Court that extended time and rescinded the dismissals, and in lieu thereof, ordered that the notice of motion be dismissed with costs.

Orders

Orders of the court

In Court of Appeal proceedings 40309/02: (1) Grant leave to appeal; (2) Subject to filing the notice of apepal within 14 days, appeal allowed; (3) Set aside the orders made by Delaney DCJ on 25 March 2002 extending the time for applying to rescind the deemed dismissal and rescinding the deemed dismissal and in lieu thereof order that the notice of motion filed on 15 February 2002 be dismissed with costs so far as it claimed those orders; (4) Opponent/respondent pay the costs of the claimant/appellant and have a certificate under the Suitors Fund Act if otherwise qualified. In each of Court of Appeal proceedings 40979/02 and 40980/02 the summons is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Falconer v Laird [2003] NSWCA 114
HEARING DATE(S):	11 April 2003
JUDGMENT DATE:	15 May 2003
JUDGMENT OF:	Handley JA at 1; Beazley JA at 2; Giles JA at 3
DECISION:	In Court of Appeal proceedings 40309/02: (1) Grant leave to appeal; (2) Subject to filing the notice of apepal within 14 days, appeal allowed; (3) Set aside the orders made by Delaney DCJ on 25 March 2002 extending the time for applying to rescind the deemed dismissal and rescinding the deemed dismissal and in lieu thereof order that the notice of motion filed on 15 February 2002 be dismissed with costs so far as it claimed those orders; (4) Opponent/respondent pay the costs of the claimant/appellant and have a certificate under the Suitors Fund Act if otherwise qualified. In each of Court of Appeal proceedings 40979/02 and 40980/02 the summons is dismissed with costs.
CATCHWORDS:	Actions for personal injuries brought in District Court - one defendant not properly named - statements of claim found not to have been served on defendants - actions not prosecuted in timely manner - no praecipes for trial filed - deemed dismissals under Pt 12 r 4C of the District Court Rules - applications to rectify position as to parties and service and rescind dismissals - whether statements of claim had been served - whether validity of statements of claim for service should be extended - whether dismissals should be rescinded - test of whether fair and just - overwhelming prejudice to defendants in defending plaintiff's claims - applications should be dismissed. D
CASES CITED:	Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541; Harding v Bourke (2000) 48 NSWLR 59; Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207; Kessey v Golledge (1999) 40 MVR 95; Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359; Rust v Barnes (1980) 2 NSWLR 726; Salido v The Nominal Defendant 32 NSWLR 524; Williams v The Minister Aboriginal Land Rights Act 1983 (2000) Aust Torts Reports 81-578.
PARTIES :	Irene Falconer v Alexander Laird Alexander Laird v Mark Lemming Alexander Laird v Robert Raciti and Leslie Green
FILE NUMBER(S):	CA 40309/02; 40979/02; 40980/02
COUNSEL:	M R Aldridge SC & J Thompson - Laird C R R Hoeben SC & J P Sewell - Falconer, Lemming, Raciti and Green
SOLICITORS:	Maxwell Berghouse & Ives, Smithfield - Laird Nevill & Edwards - Falconer, Lemming, Raciti and Green

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 356/86; 357/86; 358/86 (Campbelltown)
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ