Irwin v Pamplin (No 2) - [2021] NSWSC 1026

Supreme Court

New South Wales

Medium Neutral Citation: Irwin v Pamplin (No 2) [2021] NSWSC 1026
Hearing dates: 12 August 2021
Date of orders: 20 August 2021
Decision date: 12 August 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [39]

Catchwords:
CIVIL PROCEDURE – hearings – application for separate hearing – deferral of determination of form of relief – where the claim seeks both an account and damages – overriding purpose of Civil Procedure Act 2005 (NSW) – separate hearing granted
COURTS AND JUDGES – application for recusal –alleged apparent pre-determination of interlocutory application concerning case-management – no impact on the substantive rights of the parties – application refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 58
Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 46.2

Cases Cited:
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
Livesey v NSW Bar Association (1983) 151 CLR 288
Tepko Pty Ltd v Water Board (2001) 206 CLR 1

Category: Procedural rulings
Parties: Ann Margaret Irwin (Plaintiff/First Applicant)
Marie Dawn Pamplin (First Defendant/Respondent)
Lionel Joseph Pamplin (Second Defendant/Respondent)
Mircon Pty Limited (Third Defendant/Respondent)
Dennis G Pamplin Pty Limited (Fourth Defendant/Respondent)
Halcrows Investments Pty Limited (Fifth Defendant/Respondent)
NMOS Pty Limited (Sixth Defendant/Respondent)
The Peak on Andrew Pty Limited (Seventh Defendant/Respondent)
Mircorp International Pty Limited (Eighth Defendant/Respondent)
OSCO (Australia) Pty Limited (Ninth Defendant/Respondent)
Representation:
Counsel:
M Condon SC/M Stevens (Applicant)
G George (Respondents)
Solicitors:
Frank Farres Mersal (Applicant)
Coleman Greig Lawyers (Respondents)

File Number(s): 2018/179474
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 20 August 2021

12 August 2021:

Before the Court is an application under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The plaintiff seeks to have certain of the prayers of relief claimed in her statement of claim deferred until all issues have been dealt with, including all issues of liability. This course is opposed by the defendants.
The application arises in circumstances where I have been, in effect, case-managing the proceedings since they were first referred to me last year to deal with an application for discovery which came out of the Applications List. Over that time, other procedural issues have arisen, including an application for interlocutory injunctions which I dealt with in March: Irwin v Pamplin [2021] NSWSC 208.
On 27 July, at a case-management hearing, counsel for the plaintiff proposed short minutes of order which included an order under UCPR, r 28.2, similar in terms to the order now sought. Counsel for the defendants indicated that he wished to obtain further instructions with a view, if possible, to seeing whether agreement could be reached between the parties on the identification of suitable issues or claims for relief for separate determination. But counsel made it clear that there was no certainty that he would obtain instructions to agree to any particular order for preliminary hearing, and in those circumstances, I made directions that if the parties could not agree, the plaintiff was to file a…

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 Irwin v Pamplin (No 2)

Details

AGLC: Irwin v Pamplin (No 2) [2021] NSWSC 1026
Case: [2021] NSWSC 1026
Decision Date: 12 August 2021

CaseChat Overview and Summary

Irwin v Pamplin (No 2) was an application in the Supreme Court of New South Wales. The primary issue before the Court was whether an application for a separate hearing should be granted, as well as whether the application for recusal should be dismissed. The dispute between the parties centred around the form of relief sought in the claim, which included both an account and damages. The Court was required to determine whether the overriding purpose of the Civil Procedure Act 2005 (NSW) would be served by deferring the determination of the form of relief until after a separate hearing had been held.

The Court considered the principles of case management and the overriding purpose of the Civil Procedure Act 2005 (NSW). The Court held that the overriding purpose would be best served by granting a separate hearing, as it would enable the parties to fully present their arguments and evidence on the merits of the claim, without the potential confusion and delay caused by determining the form of relief at an early stage. Furthermore, the Court found that the application for recusal was without merit, as there was no evidence of apparent pre-determination of the interlocutory application concerning case management, and therefore no impact on the substantive rights of the parties.

In light of the above, the Court granted the application for a separate hearing, and dismissed the application for recusal. The Court found that the overriding purpose of the Civil Procedure Act 2005 (NSW) would be best served by deferring the determination of the form of relief until after a separate hearing had been held. No orders were made in relation to costs.

Orders