McColley v Commonwealth of Australia

McColley appealed to the Supreme Court of New South Wales, Court of Appeal, against a decision of the Supreme Court of New South Wales. The dispute concerned an application to strike out McColley's statement of claim, which the primary judge had granted. McColley contended that the primary judge had denied procedural fairness by relying on an authority that had not been raised with the parties during the proceedings.

The Court of Appeal was required to determine whether the primary judge erred in striking out the statement of claim. This involved considering whether the statement of claim disclosed a reasonable cause of action, specifically whether a duty of care was reasonably arguable, and whether the deliberate self-infliction of harm by McColley broke the causal link in negligence. Furthermore, the Court had to consider the nature of a strike-out order, whether it was interlocutory or final, and consequently, whether leave to appeal was required.

The Court found that the primary judge had indeed denied procedural fairness by relying on an authority not put to the parties, thereby preventing them from making submissions on its relevance or applicability. This procedural error vitiated the primary judge's decision to strike out the statement of claim. The Court reasoned that a party must be afforded an opportunity to address any authority that a court proposes to rely upon in making a determination.

The appeal was allowed.