Medcalf v The Greens NSW - [2017] NSWSC 683

Supreme Court

New South Wales

Medium Neutral Citation: Medcalf v The Greens NSW [2017] NSWSC 683
Hearing dates: 22 May 2017
Date of orders: 01 June 2017
Decision date: 01 June 2017
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The defendant’s notice of motion filed 23 March 2017 is dismissed.
(2) The defendant is to pay the plaintiff’s costs on an ordinary basis.
Catchwords: PROCEDURE – application to strike out paragraphs of affidavit – relevance of paragraphs – strike out application unsuccessful
Legislation Cited: Civil Procedure Act 2005 (NSW) s 56
Evidence Act 1995 (NSW) ss 55, 131
Fair Work Act 2009 (Cth) s 570
Uniform Civil Procedure Rules 2005 (NSW) r 4.15
Cases Cited: Darling v Palm Springs Ltd [2002] NSWSC 793
National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109, (1999) 91 FCR 513, 165 ALR 595
Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822
Category: Procedural and other rulings
Parties: Carole Medcalf (Plaintiff)
The Greens NSW, an Incorporated Association for the purposes of the Associations Incorporation Act 2009 (NSW)
Representation:
Counsel:
R de Meyrick (Plaintiff)
I Latham (Defendant)
Solicitors:
Hall Partners (Plaintiff)
Taylor and Scott Lawyers (Defendant)

File Number(s): 2016/198896
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 23 March 2017, the defendant seeks an order pursuant to rule 4.15 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the paragraphs of the following affidavits be struck out:

a. Affidavit of Carole Medcalf dated 8 January 2017:

i. Paragraphs 40 to 44 (including annexure L)

ii. Paragraphs 47 to 101 (Including annexures N to R)

iii. Paragraphs 102 to 104 (including annexure S)

iv. Paragraphs 106 to 117 (including annexure I)

v. Paragraphs 124 to 125

vi. Paragraph 128 (including annexure Y)

b. Affidavit of Christopher David Harris dated 19 January 2017

i. Paragraphs 18 to 65 (including attachments B to L)

ii. Paragraphs 110 to 113 (including attachments CC, DD and EE)

c. Affidavit of Carol Vernon dated 17 January 2017

i. Paragraphs 10 to 18 including annexures A to H).

The plaintiff is Carole Medcalf. The defendant is the Greens NSW, an Incorporated Association for the purposes of the Associations Incorporation Act 2009 (NSW). The defendant relied upon the affidavit of Timothy McCauley dated 23 March 2017.
The defendant seeks to have the identified paragraphs of the above affidavits struck out on the grounds that they are irrelevant to the issues in the proceedings, contain scandalous material, enlarge the proceedings, are vexatious and oppressive and that the inclusion of the identified paragraphs is contrary to the overriding purpose of s 56 of the Civil Procedure Act 2005 (NSW) that facilitates the just, quick and cheap resolution of the real issue in the proceedings.
Section 56 of the Civil Procedure Act reads:

“56 Overriding purpose
(cf SCR Part 1, rule 3)
(1) The overriding purpose of this Act and of rules of court, in…

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.

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Details

Case: [2017] NSWSC 683
Decision Date: 01 June 2017

CaseChat Overview and Summary

The case of Medcalf v The Greens NSW involved an application by the plaintiff to strike out certain paragraphs of an affidavit provided by the defendant. The dispute centred on the relevance and admissibility of specific paragraphs in the context of the ongoing litigation. The matter was heard in the Supreme Court of New South Wales. The plaintiff argued that certain paragraphs of the defendant's affidavit were irrelevant and prejudicial, and sought to have them excluded from the court's consideration.

The legal issue before the court was whether the contested paragraphs of the affidavit were relevant to the matters in dispute and should therefore be struck out under the relevant procedural rules. The court was required to determine the relevance of the paragraphs in question, considering their potential impact on the fairness and efficiency of the proceedings. The court also needed to assess whether striking out the paragraphs would prejudice the defendant's case or whether they could be admitted with appropriate redactions or warnings.

In its reasoning, the court examined the content of the contested paragraphs and their connection to the substantive issues of the case. The court held that the paragraphs in question were relevant to the matters in dispute and therefore should not be struck out. The court found that the paragraphs contributed to the overall context of the case and were necessary for a fair and comprehensive understanding of the issues at hand. Consequently, the application to strike out the paragraphs was dismissed. The court did not find that the inclusion of these paragraphs would unduly prejudice the defendant's case or that they could not be admitted with appropriate safeguards.

No specific orders were made beyond the dismissal of the application to strike out the paragraphs of the affidavit. The case highlights the importance of ensuring that all relevant material is considered in litigation, while also maintaining a balance between fairness to both parties and the efficiency of the proceedings.

Orders