McColley v Commonwealth of Australia

McColley (Appellant) appealed to the Supreme Court of New South Wales, Court of Appeal, against a decision of the primary judge who had struck out the Appellant's statement of claim. The dispute concerned whether the Appellant had disclosed a reasonable cause of action against the Commonwealth of Australia (Respondent), specifically whether a duty of care was reasonably arguable and whether the deliberate self-infliction of harm by the Appellant broke the causal link in negligence.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the trial judge erred by denying procedural fairness to the Appellant by relying on a legal authority that had not been raised with the parties during the proceedings. Secondly, the Court had to consider the nature of a strike-out order, specifically whether it was an interlocutory or final order, and consequently, whether leave to appeal was required.

The Court allowed the appeal, finding that the trial judge had indeed denied procedural fairness by relying on an unraised authority. The Court reasoned that it was incumbent upon the trial judge to afford the parties an opportunity to address any authority that might be determinative of the issues. The Court also determined that a strike-out order under the relevant rules of court was a final order, meaning that leave to appeal was not required. The appeal was allowed, and the matter was remitted for further consideration.