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Madsen v Darmali (No 3)

Madsen v Darmali (No 3)

Case [2024] NSWSC 582 17 May 2024

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Madsen v Darmali (No 3) [2024] NSWSC 582
Hearing dates: 3 May 2024
Date of orders: 17 May 2024
Decision date: 17 May 2024
Jurisdiction: Equity - Expedition List
Before: Rees J
Decision:
Dismiss motion to vary orders by consent.

Catchwords:
LEGAL PROFESSION – leave to serve submissions after hearing – defendant serves submissions beyond scope of leave – principles at [4]-[7] – expedited matter – urgent application – plaintiff unable to respond to submissions in time – judge disregards unauthorised submissions – cost order excises costs of unauthorised submissions – plaintiff later consents to pay these costs “to avoid a fight” – serving submissions without leave is a professional conduct issue, unsuitable to be remedied by consent – access to transcript no answer.
PROCEDURAL FAIRNESS – reasonable opportunity to be heard – principles at [9]-[13] – court not obliged to hear every submission counsel wishes to make in full – the court may cut short one party’s submissions to ensure that the other party also has a reasonable opportunity to be heard – no justification for serving submissions without leave.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 36.15(2)

Cases Cited:
Armet v Browne [2024] WASCA 44
Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226
Bull v Lee (No 2) [2009] NSWCA 362
C v W [2015] NSWSC 1774
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Quirk (2023) 414 ALR 516
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
HT v The Queen (2019) 269 CLR 403
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2015) 238 FCR 209
Huynh v Attorney General (NSW) (2021) 107 NSWLR 75
Isicob Pty Ltd v Baulderstone Hornibrook (Qld) Pty Ltd (in liq) (2001) 17 BCL 198; [2001] QSC 064
Jakaj v Kinnane [2019] ACTSC 71
Madsen v Darmali [2024] NSWSC 76
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357
NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90
Owners - Strata Plan No 74442 v Harrison [2023] NSWCATAP 144
R v Tocknell (Court of Criminal Appeal (NSW), 28 May 1998, Hulme J, unrep)
Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535
Zan & Wen (No 2) [2023] FedCFamC1A 130

Texts Cited:
Murray Gleeson, “The Judicial Method: Essentials and Inessentials” (2010) 9(4) The Judicial Review 377

Category: Consequential orders
Parties: Benny Madsen (Plaintiff)
David Darmali (First Defendant)
Chu Li (Second Defendant)
Representation:
Counsel:
Mr MA Friedgut (First and Second Defendants)
Solicitors:
TEP Legal (First and Second Defendants)

File Number(s): 2024/5024

JUDGMENT

HER HONOUR: The application concerns the Court’s management of proceedings when parties serve submissions which go beyond the Court’s leave to provide further submissions after a hearing.
The defendants seek to vary a costs order made in their favour. The plaintiff was ordered to…

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 Madsen v Darmali (No 3)

Details

AGLC: Madsen v Darmali (No 3) [2024] NSWSC 582
Case: [2024] NSWSC 582
Decision Date: 17 May 2024

CaseChat Overview and Summary

Madsen v Darmali (No 3) involved a dispute between the plaintiff and the defendant concerning leave to serve submissions after a hearing in the Federal Court of Australia. The defendant served submissions that went beyond the scope of the leave granted by the court. The court was tasked with deciding whether the defendant's actions constituted a breach of professional conduct and whether the plaintiff had been denied procedural fairness.

The court held that serving submissions without leave is a professional conduct issue and that such conduct is unsuitable to be remedied by consent. The court further reasoned that the defendant's actions did not provide the plaintiff with a reasonable opportunity to respond, which is essential for procedural fairness. The court found that it was not obliged to hear every submission counsel wished to make in full, and it could cut short one party's submissions to ensure the other party also had a reasonable opportunity to be heard.

The court disregarded the unauthorised submissions and made a cost order that excluded the costs of the unauthorised submissions. Although the plaintiff later consented to pay these costs "to avoid a fight," the court found that this did not alter the fact that the defendant's conduct was unprofessional. The court also noted that access to a transcript of the proceedings would not have answered the fundamental issue of the defendant's failure to adhere to the court's leave.

The court ultimately found that the defendant's actions constituted a breach of professional conduct and a denial of procedural fairness. The court made an order that the defendant pay the plaintiff's costs of the proceedings up to the date of the order. The court did not allow the consent to pay costs to override the need for professional conduct and procedural fairness in legal proceedings.

Orders