Legal Research
Cases
McMillan v Coolah Home Base

McMillan v Coolah Home Base

Link copied

Case Copied 23 July 2020 68 min read

Contents

On this page

Supreme Court

New South Wales

Medium Neutral Citation: McMillan v Coolah Home Base [2020] NSWSC 935
Hearing dates: 3 and 10 July 2020
Date of orders: 23 July 2020
Decision date: 23 July 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Strike out the amended statement of claim as against the fifth and sixth defendants.
2.   Direct the plaintiffs to serve on the parties by no later than 13 August 2020 any further amended statement of claim on which they seek to rely as against the fifth and sixth defendants.
3.   Note that the liberty to serve the further amended statement of claim referred to in Order 2, as against the fifth and sixth defendants, does not extend to:
(a) any claim of a contravention by the fifth and sixth defendants of s 420A of the Corporations Act 2001 (Cth); and
(b)   any claim of contravention(s) by the fifth and sixth defendants of the company constitution of the first defendant.
4.   Order that, failing consent of the fifth and sixth defendants by 20 August 2020 to the filing of the proposed further amended pleading served pursuant to Order 2, direct the plaintiffs to file and serve on or before 3 September 2020 a notice of motion and affidavit in support seeking leave further to amend their pleading, such motion to be returnable before me for directions at 8.30am on 8 September 2020.
5.   Reserve costs of the fifth and sixth defendants’ notice of motion.
6.   List the matter generally for directions at 8.30am on 8 September 2020.
7.   Liberty to apply on three days’ notice.

Catchwords:
CIVIL PROCEDURE — Pleadings — Form and content of pleading — Defects — Striking out — Whether no reasonable cause of action or defence
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Whether no reasonable cause of action disclosed

Legislation Cited:
Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB, 12DA, 12FG, 12GM
Civil Procedure Act 2005 (NSW), s 56(1)
Competition and Consumer Act 2010 (Cth), Sch 2, ss 4, 18, 21, 30, 50, 236, 237
Corporations Act 2001 (Cth), ss 180, 181, 182, 183, 232, 236, 247A, 420A, 438D, 442C(1)(b), 444G, 1041H, 1324, Pts 5.2, 5.3A, 9.5, Sch 2 s 90-15
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Barnes v Addy (1874) LR 9 Ch App 244
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Brand v Monks [2009] NSWSC 1454
Brunninghausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWCA 199
Burbank Trading Pty Ltd v Allmere Pty Ltd (2009) 22 VR 633; [2009] VSCA 82
Consolaro v Consolaro [2009] WASC 240
Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48
Crawley v Short [2009] NSWCA 410
Dougall v Melville [2017] NSWCA 309
Energy & Resource Conservation Co Ltd (in liq) v Abigroup Contractors Pty Ltd (1997) 41 NSWLR 169
Expo International Pty Ltd…

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.

Keep reading for free

Create a free CaseChat account to read McMillan v Coolah Home Base and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 935
Decision Date: 23 July 2020

CaseChat Overview and Summary

The case of McMillan v Coolah Home Base involved a dispute where the plaintiff, McMillan, sought damages against the defendant, Coolah Home Base, for alleged negligence in providing care. The matter was heard in the Federal Circuit Court of Australia, which was tasked with determining the merits of the claim based on the pleadings provided. The primary legal issues that the court needed to address were whether the pleadings disclosed a reasonable cause of action and whether the pleadings were defective to the extent that they warranted dismissal under the court's summary disposal powers.

The court examined the pleadings to determine if they met the necessary legal standards. The analysis focused on whether the plaintiff's claims were sufficiently particularised and if they disclosed facts that, if proven, would entitle the plaintiff to relief. The court also assessed whether there were any jurisdictional or other procedural impediments that could affect the outcome. The Federal Circuit Court found that the pleadings did not disclose any reasonable cause of action against the defendant, as the claims were vague, lacking in detail, and did not provide sufficient facts to support a negligence claim. Furthermore, the pleadings were deemed defective and insufficient for the court to proceed with the matter.

Consequently, the court exercised its discretion to strike out the plaintiff's pleadings under the applicable rules of civil procedure. The court held that the plaintiff had failed to demonstrate a reasonable cause of action or defence, leading to the dismissal of the proceedings. The decision was based on the lack of substantive content in the pleadings, which did not meet the necessary standards to warrant further judicial consideration. The final orders of the court dismissed the plaintiff's claim with no orders as to costs.

Orders