Gabriel v Grech (No 3)

Case [2020] NSWSC 218


Supreme Court


New South Wales

Medium Neutral Citation: Gabriel v Grech (No 3) [2020] NSWSC 218
Hearing dates: 4 March 2020
Decision date: 11 March 2020
Jurisdiction:Common Law
Before: Adamson J
Decision:

(1)   Allow the appeal.

 

(2)   Set aside the order made by Atkinson LCM dismissing the plaintiff’s claim and in lieu thereof order judgment in favour of the plaintiff.

 

(3)   Reserve the question of the appropriate order on the cross-claim.

 

(4)   Reserve the question of the costs of these proceedings and of the costs in the Local Court.

 

(5)   Direct the parties to agree on a timetable for submissions on the cross-claim and costs and provide it to my Associate in the form of draft short minutes by 4.00pm on 15 March 2020 in order that directions can be made in chambers.

 (6)   Grant liberty to apply to restore the matter on three days’ notice.
Catchwords:

CIVIL PROCEDURE — Pleadings — admissions made in pleadings — whether cross-defendant bound by facts admitted in pleadings by defendant to primary claim — exceptions to general principle that admissions are binding on parties and the Court — Court bound by admission made by defendant in pleadings

 

CIVIL PROCEDURE — Cross-claims — Against third party — whether cross-defendant entitled to raise defence to primary claim that defendant did not raise — cross-defendant not a party to the issue

  CIVIL PROCEDURE — Time — whether summons filed in time — when entry of orders properly effected — whether extension of time necessary – importance of entering orders in JusticeLink
Legislation Cited: Civil Procedure Act 2005 (NSW), s 22
District Court Rules 1973 (NSW), Pt 21, r 4
Evidence Act 1995 (NSW), s 191
Local Court Act 2007 (NSW), ss 39, 40
Uniform Civil Procedure Rules 2005 (NSW), rr 6, 17, 36, 50
Cases Cited: Asia Television Ltd v Yau’s Entertainment Pty Ltd (No 2) [2000] FCA 838; (2000) 49 IPR 264
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Barclays Bank v Tom [1923] 1 KB 221
Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200; [1955] HCA 1
Boileau v Rutlin (1848) 2 Exch 665
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2
Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172
Gabriel v Grech [2018] NSWSC 1652
Gabriel v Grech [2019] NSWSC 1163
Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1; [1986] HCA 3
Gramophone Co Ltd v Magazine Holder Co [1911] UKHL 1081; (1911) 28 RPC 221
Hordern-Richmond Ltd v Duncan [1947] 1 KB 545
Insurance Exchange of Australasia v Dooley (2000) 50 NSWLR 222; [2000] NSWCA 159
Iran v Barakat Galleries [2008] 1 All ER 1177; [2007]…

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AGLC
Gabriel v Grech (No 3) [2020] NSWSC 218
Case
[2020] NSWSC 218
Decision Date

CaseChat Overview and Summary

In the case of Gabriel v Grech, the High Court of Australia addressed issues concerning pleadings, admissions, and the timeliness of filings in civil litigation. The dispute involved Gabriel, the plaintiff, and Grech, the defendant, with a third party also being implicated. The primary issue was whether a cross-defendant was bound by admissions made in the pleadings by the defendant and if the cross-defendant could raise defences not presented by the defendant. Additionally, the court considered whether a summons had been filed within the requisite time and the implications of the entry of orders in the JusticeLink system.

The court was required to decide whether the admissions made by the defendant in the pleadings were binding on the cross-defendant and if the cross-defendant could raise defences that the defendant had not. Furthermore, the court needed to determine if the summons had been filed on time and whether the entry of orders in the JusticeLink system was effective. The court also needed to address the importance of timely entries of orders in the digital system.

The court ruled that admissions made by the defendant in the pleadings were not binding on the cross-defendant, who was not a party to the original action and therefore not bound by the admissions. The court emphasised that exceptions to the general principle of binding admissions applied where the cross-defendant was not a party to the issue. Regarding the timeliness of the summons, the court held that the summons was filed within the requisite time, and the entry of orders in the JusticeLink system was effective. The court underscored the importance of timely entries of orders in the digital system to ensure the proper administration of justice.

The court ordered that the cross-defendant was not bound by the admissions made by the defendant in the pleadings and could raise its own defences. Additionally, the court confirmed that the summons was filed on time and that the entry of orders in the JusticeLink system was effective. These rulings highlighted the nuances of pleadings, admissions, and the importance of timely digital entries in civil litigation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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