McGuirk v The University of New South Wales

[2011] NSWSC 1645

Supreme Court

New South Wales

Medium Neutral Citation:

McGuirk v The University of New South Wales [2011] NSWSC 1645

Hearing dates:

14 December 2011

Decision date:

14 December 2011

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

(a) Pursuant to rule 6.31 (2) Uniform Civil Procedure Rules 2005, an order is made that, unless an application to join a party to replace the deceased Plaintiff is made on or before 24 February 2012, these proceedings will be dismissed.

(b) The Defendant is to notify, in writing, by 4.00 pm on Friday, 16 December 2011, Mr Jonathan Harris of Harris Freidman Lawyers, of the fact that this order has been made, attaching a copy of these reasons which will be furnished to the solicitor for the Defendant for that purpose.

(c) Liberty is granted to apply on 48 hours' notice, in the event that any application is to be made, such liberty to be activated by contact with Johnson J's Associate.

Catchwords:

PRACTICE AND PROCEDURE - civil proceedings - claim for damages for breach of contract, common law deceit and under Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 - Plaintiff dies whilst proceedings on foot - no application made to join party to replace deceased Plaintiff - application under Rule 6.31(2) Uniform Civil Procedure Rules 2005 for dismissal of proceedings unless joinder application made - order made

Legislation Cited:

Law Reform (Miscellaneous Provisions) Act 1944
Uniform Civil Procedure Rules 2005

Cases Cited:

McGuirk v University of New South Wales [2010] NSWSC 1471
McGuirk v University of New South Wales (No. 2) [2011] NSWSC 361

Texts Cited:

---

Category:

Procedural and other rulings

Parties:

Gerard Michael McGuirk (Plaintiff)
University of New South Wales (Defendant)

Representation:

Ms S Bennett, Solicitor (Defendant)
Sparke Helmore (Defendant)

File Number(s):

2008/289246

Publication restriction:

---

Judgment

1. JOHNSON J : The present proceedings, in which the Plaintiff, Gerard Michael McGuirk, sued the Defendant, the University of New South Wales, have been before me on a number of occasions for interlocutory purposes.

1. I have delivered a number of judgments with respect to amendment of the Statement of Claim and associated issues. The last substantial judgment was a judgment delivered on 17 December 2010: McGuirk v University of New South Wales [2010] NSWSC 1471. Since the delivery of that judgment, a further judgment was given on the question of costs: McGuirk v University of New South Wales (No. 2) [2011] NSWSC 361.

1. The last occasion on which the proceedings were before me was 7 July, 2011 at which time the Plaintiff participated in a directions hearing by telephone, given his involvement in a part heard criminal matter at the Burwood Local Court. Further directions were given to progress the matter, and a judgment was delivered by me that day which has not been published on Case Law.

1. To that point, the proceedings had a protracted history.

1. In early September 2011, Ms Bennett, the solicitor for the Defendant, contacted my Associate to indicate that she had been informed that the Plaintiff was deceased. The question of what would occur in the litigation has been the subject of further steps taken by Ms Bennett.

1. The current application made by the Defendant is one under rule 6.31 Uniform Civil Procedure Rules 2005 ("UCPR"). That rule applies to any proceedings in which a party dies, but a cause of action in the proceedings survives the death of the party, and where an order for the joinder of a party to replace the deceased party is not made within three months after the death. In those circumstances, the Court may order that, unless an application to join a party to replace the deceased party is made within a specified time, the proceedings in relation to the cause of action concerned will be dismissed. As part of an order under the rule, the Court may give directions as it thinks fit for service of the order on any person who is interested in continuing the proceedings.

1. The purpose of the rule is clear enough. Where a party to proceedings dies, there is an opportunity for any party who may wish to maintain the proceedings to do so, within three months. If no such application is made, then the Court may make an order which nominates a day by which time any relevant party must bring an application to be joined to replace the deceased party, and if no such application is made the proceedings will be dismissed by operation of the rule.

1. The causes of action which the Plaintiff brought against the Defendant, and which remained on foot as at early September 2011, included claims for breach of contract and other claims identified in my earlier judgments. On the face of it, some at least of those causes of action would survive the death of the Plaintiff, given the provisions of s.2 Law Reform (Miscellaneous Provisions) Act 1944 .

1. Whether or not any person with an interest in the proceedings would wish to maintain the proceedings, is a separate question. At this stage, I merely observe that the causes of action do not seem to be causes of action which would not survive the death of the Plaintiff.

1. The precise date of the death of the Plaintiff is not established in the evidence that has been put before the Court today. However, what is entirely clear is that it is a date that is more than three months before today. So much is clear from an email dated 13 September 2011 to Ms Bennett, from William Beerworth, solicitor, a friend of the Plaintiff, which confirms that certain steps were being taken arising from the death of the Plaintiff. Mr Beerworth indicated to Ms Bennett that Jonathan Harris, of Harris Freidman Lawyers, was understood to be the executor of the estate of the Plaintiff.

1. Ms Bennett has written to Mr Harris on 30 November 2011, indicating that the matter was before me today. There is no appearance by Mr Harris today.

1. I am satisfied that the material demonstrates that the Plaintiff died in early September 2011 and certainly before 13 September 2011.

1. I am satisfied, as well, that no order for joinder of a party to replace the deceased Plaintiff has been made in the three months or more that have passed since his death.

1. Accordingly, I am satisfied that an order should be made under the rule. It will be appropriate for the order to be served on Mr Harris, and I will include an order to that effect in the order which I make. I will also include in the order a requirement that a copy of the judgment I am presently giving be provided to Mr Harris, so as to explain precisely what the order is that is being made and why.

1. However, I do not see the need for a future listing date before the Court. The effect of rule 6.31 UCPR is to make an order which allows, effectively, a final opportunity to a party who may wish to seek to replace the deceased party to make such an application. If the application is not made by the time which I will nominate, being 24 February, 2012, then the proceedings will stand dismissed without further order.

1. If it be the case that there was any application that was sought to be made, then the appropriate course would be to make that application to me. Accordingly, I will grant liberty to apply to my Associate in the event that any application is made.

1. However, as I have made clear, the time for making such an application will expire on 24 February 2012, and if no such application is made then the proceedings will stand dismissed.

1. I make the following orders:

(a) Pursuant to rule 6.31 (2) Uniform Civil Procedure Rules 2005, I make an order that, unless an application to join a party to replace the deceased Plaintiff is made on or before 24 February 2012, these proceedings will be dismissed.

(b) I order that the Defendant is to notify, in writing, by 4 pm on Friday, 16 December, 2011, Mr Jonathan Harris of Harris Freidman Lawyers, of the fact that this order has been made, attaching a copy of my reasons which will be furnished to the solicitor for the Defendant for that purpose.

(c) I grant liberty to apply on 48 hours' notice, in the event that any application is to be made, such liberty to be activated by contact with my Associate.

1. As I have said, if there is no step taken on or before 24 February, 2012, the proceedings will stand dismissed without further order of the Court.

**********

Decision last updated: 04 February 2012