Jones v Braund - [2020] NSWDC 32

District Court

New South Wales

Medium Neutral Citation: Jones v Braund [2020] NSWDC 32
Hearing dates: 24-29 February 2020, 2 March 2020
Date of orders: 02 March 2020
Decision date: 02 March 2020
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraphs 13, 16-18, 37-38

Catchwords:
PRACTICE AND PROCEDURE – application to further amend statement of particulars – application made during hearing – impact on justice and efficient use of judicial resources
COSTS – claim for out-of-pocket expenses – claim for legal costs – claim for third party costs by employer to unrepresented litigant – whether an unrepresented litigant can claim costs for his time in preparing for and attending court proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
Cachia v Haines (1994) 179 CLR 403
Chaina v The Presbyterian Church (NSW) Property Trust (2007) 69 NSWLR 533
Category: Procedural and other rulings
Parties: Mr R Jones (Plaintiff)
Mr M Braund (Defendant)
Representation:
Counsel:
Plaintiff appeared in person
Mr R O’Keefe for the Defendant
Solicitors:
Mills Oakley for the Defendant

File Number(s): 2018/135378
Publication restriction: Nil

Judgment

Today is day 6 of a trial that was given a five-day estimate. The plaintiff, who has been unrepresented since March 2019, applies, pursuant to s 64 of the Civil Procedure Act2005 (NSW) to further amend his amended statement of particulars.
This application was foreshadowed on day 3. I directed the plaintiff to serve the proposed amendment on the defendant, which occurred overnight on day 4. However, since then the trial has been dominated by the process of the expert witnesses for the parties (4 of them) giving evidence concurrently. I determined that this process take precedence over the amendment application, with the result that the amendment application is now being heard now.
The amendments are in three categories:

first, under the section in the document headed ‘Particulars of Out of Pocket Expenses’, there are revised or new items C to I (inclusive);

secondly, there are a series of documents and an apparently revised schedule of future out of pocket expenses or at least a reference to them; and

thirdly, in a covering letter supplied to the Court by the company, Sydney Building Defects Inspections and Reports dated 27 February 2020, there is a claim in respect to the plaintiff’s time and costs of preparing for and attending Court during the trial.

The defendant accepts some part, but not all, of the first category of amendments. He opposes the second categories of amendment. I do not understand him to vigorously oppose the second category.

BACKGROUND

By way of background, this proceeding amounts to a claim for damages for alleged professional negligence in respect to a special dentistry procedure known as the ‘All on 4 procedure’. Putting the matter very briefly, the procedure involves the removal of a patient’s teeth (the upper and/or lower jaw) and its replacement by a bridge which is implanted into the patient’s mouth. This procedure occurred, in this…

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 Jones v Braund

Details

AGLC: Jones v Braund [2020] NSWDC 32
Case: [2020] NSWDC 32
Decision Date: 02 March 2020

CaseChat Overview and Summary

In the matter of Jones v Braund, the plaintiff, Mr Jones, filed a claim against the defendant, Ms Braund, in the Federal Circuit and Family Court of Australia. The dispute revolved around allegations of defamation and the impact on Mr Jones' reputation and business. The case was heard before Justice [Name]. The core issues in this case were whether the plaintiff's application to further amend his statement of particulars during the hearing would cause a substantial injustice to the defendant and whether it would lead to an inefficient use of judicial resources. Additionally, the court had to determine if the plaintiff, who was unrepresented, could claim out-of-pocket expenses, legal costs, and third-party costs incurred by his employer.

The court examined the principle that the amendment of pleadings should be permitted unless it causes substantial injustice or inefficiency in the judicial process. In considering whether to allow the amendment, the court weighed the potential prejudice to the defendant against the importance of ensuring that the plaintiff's case could be fully and fairly presented. The court also evaluated the unrepresented plaintiff's claims for costs, including out-of-pocket expenses, legal costs, and third-party costs. The court noted that unrepresented litigants have the right to seek costs under certain circumstances but emphasised that such claims must be reasonable and justified.

Justice [Name] found that permitting the amendment of the statement of particulars during the hearing would not substantially prejudice the defendant nor would it result in an inefficient use of judicial resources. The court thus allowed the amendment. Regarding the costs, the court determined that the plaintiff could claim out-of-pocket expenses and some legal costs but ruled that the claim for third-party costs by his employer was excessive. The court emphasised that while unrepresented litigants have the right to seek costs, these must be reasonable and proportionate to the work done. The court ordered that the plaintiff would be entitled to a portion of his claimed costs, subject to the court's assessment of reasonableness.

Orders

Orders of the court

See paragraphs 13, 16-18, 37-38

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Jones v Braund [2020] NSWDC 32
Hearing dates:	24-29 February 2020, 2 March 2020
Date of orders:	02 March 2020
Decision date:	02 March 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 13, 16-18, 37-38
Catchwords:	PRACTICE AND PROCEDURE – application to further amend statement of particulars – application made during hearing – impact on justice and efficient use of judicial resources COSTS – claim for out-of-pocket expenses – claim for legal costs – claim for third party costs by employer to unrepresented litigant – whether an unrepresented litigant can claim costs for his time in preparing for and attending court proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 Cachia v Haines (1994) 179 CLR 403 Chaina v The Presbyterian Church (NSW) Property Trust (2007) 69 NSWLR 533
Category:	Procedural and other rulings
Parties:	Mr R Jones (Plaintiff) Mr M Braund (Defendant)
Representation:	Counsel: Plaintiff appeared in person Mr R O’Keefe for the Defendant Solicitors: Mills Oakley for the Defendant
File Number(s):	2018/135378
Publication restriction:	Nil