Kenneth Allan Donaldson v Commonwealth of Australia

[2012] HCASL 51

KENNETH ALLAN DONALDSON
v
COMMONWEALTH OF AUSTRALIA
[2012] HCASL 51
S410/2011

1. On 20 July 2010, the applicant commenced proceedings in the Common Law Division of the Supreme Court of New South Wales seeking damages from the Commonwealth for breach of contract, breach of a statutory duty of care, fraud and negligence.  On 15 August 2010, the Commonwealth filed a defence.

2. On 18 November 2010, the Commonwealth filed a Notice of Motion seeking summary dismissal of the proceedings or that the Statement of Claim be struck out.  On 23 November 2010, the applicant filed a Notice of Motion seeking default judgment for unliquidated damages.

3. On 7 February 2011, Davies J heard both Notices of Motion.  His Honour found that the applicant's motion failed as the Commonwealth's defence had been filed and served before default judgment had been obtained.  His Honour further found no basis for the claims in contract and fraud.  An adjournment was granted to allow the applicant to amend his Statement of Claim with respect to the purported negligence and breach of statutory duty grounds.  On 20 April 2011, the applicant filed an Amended Statement of Claim.

4. Ultimately, after a hearing on 7 February 2011 and 13 May 2011, Davies J held that the pleading disclosed no causes of action against the Commonwealth and gave summary judgment for the Commonwealth, accompanied by comprehensive reasons.

5. The applicant sought leave to appeal to the Court of Appeal.  On 11 October 2011, the Court of Appeal (Giles JA and Sackville AJA) dismissed the application with costs on the grounds that the trial judge did not make any errors in his Honour's findings, reasoning or conclusions.

6. The applicant requires an extension of time in which to file his application for special leave to appeal.  The draft notice of appeal and written case, each filed 15 December 2011, advance complaints concerning the alleged bias and prejudice of the Court of Appeal and the alleged failure of the Court to correctly apply provisions of the Uniform Civil Procedure Rules 2005 (NSW).

7. The application to this Court does not advance any ground that would justify a grant of special leave to appeal.  We grant an extension of time but special leave to appeal is refused.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow
29 March 2012 S.M. Kiefel