Court of Appeal
New South Wales
Case Title: Liao v State of New South WalesZhang v State of New South Wales Medium Neutral Citation: [2014] NSWCA 71 Hearing Date(s): 25 July 2013 Decision Date: 24 March 2014 Before: Beazley P at [1]; Basten JA at [2]; Barrett JA at [137] Decision: Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PROCEDURE - pleading - prior adjudication in proceedings in which the present defendant was sued by different plaintiff - application for order striking out parts of the defence said to reflect findings in the earlier proceedings - whether abuse of process to put the plaintiff to proof of such matters - PROCEDURE - admissions - power of court to compel admissions - findings in the earlier proceedings against the defendant said to require admissions by the defendant in present proceedings Legislation Cited: Civil Procedure Act 2005 (NSW)
Commercial Causes Act 1903 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Attorney-General v Parnther (1792) 3 Bro CC 441; (1792) 29 ER 632
Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd [1982] 2 Lloyd's Rep 132
Brandon v Commonwealth [2005] FCA109
Calyon v Michailaidis [2009] UKPC 34
Conlon v Simms [2006] EWCA Civ 1749; [2008] 1 WLR 484
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
D'Orta-Ekanaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Downey v Acting District Court Judge Boulton (No 4) [2010] NSWCA 114
Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43
Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188
Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669
Hodges v State of New South Wales [1988] HCA 9; (1988) 62 ALJR 190
Hollington v F Hewthorn & Co Ltd [1943] KB 587
Hopcroft & Edwards v Edmunds [2013] SASCFC 38
Hunter v Chief Constable of West Midland Police [1982] AC 529
Ishac v David Securities Pty Ltd (Supreme Court of New South Wales, 13 December 1991)
King's City Holdings Ltd v De Monsa Investments Ltd [2013] HKCA 292
Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333
North West Water Ltd…
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- Case
- [2014] NSWCA 71
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether certain parts of the defendant's defence should be struck out as an abuse of process, and whether the court had the power to compel the defendant to make admissions in the present proceedings based on findings made in prior, related proceedings. Specifically, the court examined whether it was an abuse of process for the defendant to require the plaintiffs to prove matters that had allegedly been determined in earlier litigation where the defendant was sued by a different plaintiff.
The Court of Appeal reasoned that the defendant should be granted leave to amend its defence in accordance with a document submitted to the court, subject to certain findings. The court found that the allegation of embarrassment in the pleading was unnecessary and not a relevant ground for striking out a pleading under the Uniform Civil Procedure Rules 2005 (NSW). Regarding the compulsion of admissions, the court noted that while the argument was developed by reference to Mr Liao's proceedings, it was convenient to address the issue in relation to Mr Zhang's claim first. The court concluded that for certain particulars, the defendant's proposed amended defence made relevant admissions, rendering the need for further compelled admissions unnecessary. For other particulars, the court indicated that the issues should be dealt with by a judge in the Division, particularly where the resolution of pleading issues relied on a document not before the trial judge.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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