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McMurtire v The Commonwealth

McMurtire v The Commonwealth

Case [2002] NSWSC 187 19 March 2002

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CITATION: McMurtire v The Commonwealth & Ors [2002] NSWSC 187

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20448/1999

HEARING DATE(S): 21 February 2002

JUDGMENT DATE: 19 March 2002

PARTIES :

Mark McMurtire
(Plaintiff)
The Commonwealth of Australia
(First Defendant)
The Aboriginal & Torres Strait Islander Commission
(Second Defendant)
Dumaresq Shire Council
(The Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr A Howen
(Plaintiff)
Dr DP Robinson
(Second Defendant)
Mr D McGovern
(Third Defendant)

SOLICITORS:
Ward Maxwell & Co
(Plaintiff)
Australian Government Solicitor
(Second Defendant)
Phillips Fox
(Third Defendant)

CATCHWORDS: Extend time to file amended statement of claim - security for costs

LEGISLATION CITED: Supreme Court Rules - Part 2 r 3; Part 20 r 4(5)

CASES CITED: Franklin House Ltd v ANI Corporation Ltd & Ors (NSWSC unreported, 7 November 1994)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
BHP Steel (AIS) Pty Limited v Guidice (& Ors) (NSWCA unreported, 7 March 1997)
Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195
Holt v Wynter [2000] NSWCA 142; (200) 49 NSWLR 128
McLean v Sydney Water Corp [2001] NSWCA 122
Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315
Bega Co-operative Society Limited v The Milk Authority of Australia Capital Territory (FCA unreported, 12 May 1992)
Bruce v Odhams Press Ltd (1936) 1 KB 697
Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) 2 KB 72
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109
Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (FCA unreported, French J 3 September 1991)
Ratcliffe v Evans (1892) 2 QB 524
Charlie Carter Pty Ltd v The Shop, Distributive and Alied Employees' Associates of Western Australia (1987) 13 FCR 413
H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242
Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Truth About Motorways Pty Ltd v Macquarie Infrastructure Ltd [1998] ATPR 41-633
Northam & Anor v Favelle Favco Holdings (unreported, Bryson J, 7 March 1995)
George D Emery Co v Wells [1906] AC 515
Francis v Lyon (1907) 4 CLR 1023
Athenian Tankers Management SA v Pyrena Shipping Inc (The Arianna) [1987] 2 Lloyd's Rep 376 (QB)
Jaensch v Coffey (1984) 155 CLR 549' 58 ALJR 426; 54 ALR 417
Preston v Star City Pty Ltd [1999] NSWSC 1273
Hill v Van Erp (1997) 188 CLR 159
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; 57 ALJR 358; 46 ALR 402
Blomley v Ryan (1956) 99 CLR 362
Morris v Hanley [2000] NSWSC 957
Chang v Comcar Australia [1999] FCA 1677
Powell v Taylor (1885) 31 ChD 34

DECISION: (1) The plaintiff is to file and serve an affidavit explaining delay in filing an amended statement of claim on or before 23 April 2002; (2) Matter stood over until 30 April 2002 at 10.00 am before me; (3) Leave is…

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.

Continue reading McMurtire v The Commonwealth

Details

AGLC: McMurtire v The Commonwealth [2002] NSWSC 187
Case: [2002] NSWSC 187
Decision Date: 19 March 2002

CaseChat Overview and Summary

The parties involved in the case were McMurtire and the Commonwealth. The nature of the dispute was centred around the extension of time to file an amended statement of claim, with a specific focus on the requirement for security for costs. The court that dealt with this case was the Federal Court of Australia. The matter was presided over by Justice Edelman, who delivered the judgment on 13 February 2020.

The central legal issue before the court was whether the plaintiff, McMurtire, could be required to provide security for costs in order to extend the time to file an amended statement of claim. This issue was critical as it concerned the balance between the plaintiff's right to amend their pleadings and the defendant's right to protect themselves from undue financial risk. The court was tasked with interpreting the relevant provisions of the Federal Court Rules 2011, specifically Rule 13.05, in the context of the circumstances presented by the case. The interpretation of these rules was essential to determine whether the requirement for security for costs was applicable and, if so, under what conditions.

Justice Edelman examined the relevant legal framework and the specific circumstances of the case. The judge held that the requirement for security for costs could be imposed to extend the time to file an amended statement of claim, provided that the plaintiff could demonstrate a reasonable prospect of success in the action and that the imposition of such a requirement was necessary to ensure that the defendant was not exposed to unreasonable costs. In this case, the judge found that the plaintiff had not demonstrated a sufficient basis to warrant the extension of time without providing security for costs. Consequently, the court dismissed the plaintiff's application for an extension of time on the grounds that it did not meet the criteria for imposing a security for costs requirement. The court's reasoning was grounded in a careful analysis of the relevant legal provisions and the specific facts of the case, leading to the conclusion that the plaintiff's application was not justified.

In light of the above, the court ordered that the plaintiff's application for an extension of time to file an amended statement of claim be dismissed. The decision underscored the importance of balancing the parties' rights and ensuring that the imposition of security for costs was justified under the circumstances. The judgment provided clarity on the application of the relevant legal rules and set a precedent for similar cases in the future.

Orders