Madsen v Darmali (No 3)

Case [2024] NSWSC 582


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

  1. 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.

  2. The defendants seek to vary a costs order made in their favour. The plaintiff was ordered to…

Continue reading Madsen v Darmali (No 3)

Sign in free to access the full text

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

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.