Kevern v Marshall

JEFFREY JOHN KEVERN v GARRY BRENT MARSHALL
[2012] ACTSC 9 (31 January 2012)

PRACTICE AND PROCEDURE – summary judgment for plaintiff – factors militating against order for summary judgment – concurrent proceedings between the parties in interstate Supreme Court – potential limitation defence – disputed issues of fact – expression of intention in originating claim not to apply for summary judgment – summary judgment within discretion of court – application refused.

Court Procedures Rules 2006 (ACT), Pt 2.7, rr 502, 1146
Supreme Court Act1970 (NSW), s 63

Supreme Court Rules 1937(ACT) (repealed)

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

No. SC 46 of 2010

Master Harper             
Supreme Court of the ACT

Date: 31 January 2012           

IN THE SUPREME COURT OF THE     )
  )          No. SC 46 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:  JEFFREY JOHN KEVERN

Plaintiff        

AND:  GARRY BRENT MARSHALL

Defendant

ORDER

Judge:  Master Harper
Date:  31 January2012
Place:  Canberra

THE COURT ORDERS THAT:

1. the plaintiff’s application dated 22 March 2011 be dismissed.

1. the plaintiff’s application dated 10 May 2011 be dismissed.

1. The plaintiff in this action has applied for summary judgment.  At the time the application was heard, the plaintiff was represented by solicitors and counsel.  He has since filed a notice that he is acting in person.

1. Both plaintiff and defendant have been represented by more than one firm of solicitors during the course of the proceeding.  The defendant is also now un-represented, his last solicitors having withdrawn.

Plaintiff’s correct name

1. The proceedings were started in the name of the plaintiff as Jeff John Kevern. It is apparent from affidavits he has since affirmed that his correct name is Jeffrey John Kevern. At one point in the proceedings, following a change of solicitors, his new solicitors commenced to entitle documents in his correct name. They did not seek leave to amend before doing so, and no formal amendment has been made. Rule 502(4) of the Court Procedures Rules 2006 provides that if there is a mistake in the name of the party, the court must give leave for, or direct the making of, amendments necessary to correct the mistake. To resolve this minor problem, I order that the plaintiff’s name be amended to Jeffrey John Kevern, and dispense with compliance with part 2.7 of the Rules to the extent that they would otherwise require any action by either party other than entitling documents filed from now on in the plaintiff’s correct name.

Factual background

1. The plaintiff sets out the background of the matter in an affidavit of 22 March 2011 in support of the application.  He now lives in Canberra.  At the time of the events giving rise to the proceedings, he lived at Pleasant Hills in the Riverina area of NSW where he was self-employed as an apiarist.  In the latter half of 1999 he placed an advertisement for the sale of some beehives, which was answered by the defendant.  The plaintiff is now seventy-five.  He has worked in the apiary business…