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Glen Miller QC v AR Conolly & Co Solicitors & 2 Ors

Glen Miller QC v AR Conolly & Co Solicitors & 2 Ors

Case [2007] NSWSC 483 16 May 2007

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CITATION: Glen Miller QC v AR Conolly & Co Solicitors & 2 Ors [2007] NSWSC 483

HEARING DATE(S): 9 May 2007

JUDGMENT DATE :
16 May 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) Leave is granted to the plaintiff file and serve an ASC within seven days; (2) This matter is to be heard together with proceedings 14621/2006; (3) The balance of the notice of motion filed 16 November 2006 is dismissed; (4) Costs of the motion are reserved except the plaintiff is to pay the defendants' costs thrown away by the amendment to the statement of claim.

CATCHWORDS: Amend Statement of Claim - separate determination of issues

LEGISLATION CITED: Civil Procedure Act 2005 (NSW) - s 56
Legal Profession Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) - Rule 28.2

CASES CITED: ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037
Admiral 1 Pty Ltd v Leighton Contractors Pty Ltd [2005] NSWSC 1105
Dunstan v Simmie Co Pty Ltd [1978] VR 669
Idoport Pty Limited v National Australia Bank Ltd [2000] NSWSC 1215
Muriniti v Lyons [2004] NSWSC 135
Perre v Apand Pty Limited (1999) 198 CLR 180
Pioneer Park Pty Limited v ANZ Banking Group Limited [2005] NSWSC 832
Tallglen Pty Limited v Pay TV Holdings Pty Limited (1996) 22 ACSR 130
Tepko Pty Limited v Water Board (2001) 206 CLR 1
Wentworth v Rogers [2006] NSWCA 145

PARTIES: Glen Miller QC - Plaintiff
Alan Robert Conolly t/as AR Conolly & Co Solicitors - First Defendant
Elizabeth Ramsay t/as AR Conolly & Co Solicitors - Second Defendant
Lara Mynott t/as AR Conolly & Co Solicitors - Third Defendant
Walter Turnbull Pty Ltd - Cross Defendant

FILE NUMBER(S): SC 20369/2006

COUNSEL: Mr G Inatey SC with Mr J T Johnson - Plaintiff
Mr A P Quinlivan - Defendants
Mr Elliott - Cross Defendant

SOLICITORS: Sally Nash & Co - Plaintiff
AR Conolly & Co Solicitors - Defendants
Horton Rhodes - Cross Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 16 MAY 2007
20369/2006 - GLEN MILLER QC v ALAN ROBERT

CONOLLY t/as AR CONOLLY & CO SOLICITORS & 2 ORS

JUDGMENT (Amend Statement of Claim

- separate determination of issues)

1 HER HONOUR: By notice of motion filed 16 November 2006, the plaintiff seeks orders that firstly, he have leave to file an amended statement of claim (ASC); secondly that the Court hear the matter pleaded in paragraphs 1-21 of the ASC; and thirdly that after determination of paragraph 1-21 of the ASC, the Court give directions to Alec Goldman to proceed with the costs assessment of the plaintiff’s bills of costs in Supreme Court proceedings 90378/2006 commenced under the Legal Profession Act 1987 (NSW) (LPA). This judgment is similar to my judgment in proceedings 14621/2006 Turvey To v Alan Robert Conolly t/as AR Conolly & Co Solicitors & 2 Ors [2007] NSWSC 482. Glen Miller QC and Turvey To are…

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 Glen Miller QC v AR Conolly & Co Solicitors & 2 Ors

Details

AGLC: Glen Miller QC v AR Conolly & Co Solicitors & 2 Ors [2007] NSWSC 483
Case: [2007] NSWSC 483
Decision Date: 16 May 2007

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Glen Miller QC versus AR Conolly & Co Solicitors and two others was presented. The plaintiff, Glen Miller QC, sought amendments to his Statement of Claim against the defendants, AR Conolly & Co Solicitors, and two other parties. The dispute centred around the plaintiff's request to adduce additional evidence and claims not initially included in his original Statement of Claim. The court was tasked with determining whether these amendments should be permitted and, if so, under what conditions.

The legal issues before the court included whether the amendments proposed by the plaintiff were permissible under the rules of court, and whether the defendants would suffer prejudice if the amendments were allowed. Additionally, the court needed to consider whether the proposed amendments related back to the original Statement of Claim, and if they were relevant to the subject matter of the existing proceedings. The court's role was to balance the plaintiff's right to amend his pleadings with the defendants' right to be protected from undue prejudice and surprise.

The court examined the relevant rules of court and found that amendments to a Statement of Claim could be allowed if they did not alter the essential character of the proceeding or cause prejudice to the defendants. The court also noted that amendments that relate back to the original pleadings could be considered, provided they were within the scope of the original claims. After careful consideration, the court decided that the proposed amendments were allowable, as they did not change the fundamental nature of the case and would not prejudice the defendants. The court ordered that the plaintiff's Statement of Claim be amended accordingly, allowing for the inclusion of the additional evidence and claims.

Orders