Nittis v Strand Bags Group Ltd - [2006] NSWLC 47

No judgment structure available for this case.

Local Court of New South Wales

CITATION: Nittis v Strand Bags Group Ltd [2006] NSWLC 47

JURISDICTION: Civil

PARTIES: George Nittis
Strand Bags Group Ltd
Cheryle Anne Aitken

FILE NUMBER: 1437/06

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION:
11/10/2006

MAGISTRATE: Magsitrate B A Lulham

CATCHWORDS: Practice - Whether party able to file application for re-hearing of arbitration matter outside the 28 day period - Whether court has power to grant leave.

LEGISLATION CITED: Uniform Civil Procedure Rules 20 - r 20.12, r 36.15(1), r 36.11, r 36.4, r 20.11.4, r 36.11.2, r1.12

CASES CITED: Eli v GIO of NSW (1988) NSWLR 303
Majestic v Brough (1986) 5NSWLR 393

REPRESENTATION: Counsel for Plaintiff: Mr Carolan
Solicitors for Plaintiff: Sage Solicitors
Advocate for Defendant : Mr P.J. Angus – Solicitor
Solicitors for Defendant: Turk Solicitors

ORDERS: Application granted.

Reasons for Decision

1 On 5 October 2006 a Motion filed on 1 September 2006 by the defendant/applicant came on for hearing. The Motion sought the following orders:

(1) In accordance with r20.12 the defendants moved the court for orders that there be a full rehearing of the proceedings.

(2) This Motion be heard ex parte.

(3) Any further order that the court determines appropriate.

2 The hearing of the Motion was adjourned to 19 October 2006. The applicant was to file a further Motion seeking to have the judgment entered by the court in the matter set aside.

3 On 19 October 2006 the applicant moved on a further Notice of Motion filed 16 October 2006 which sought the following orders:

(1) The judgment entered on 29 August 2006 against the defendant be set aside pursuant to r36.15(1) of the Uniform Civil Procedure Rules 2005.

(2) The time for filing an application for rehearing of an arbitrated matter be extended until 19 October 2006 pursuant to pt1 r1.12 of the Uniform Civil Procedure Rules 2005.

(3) This Motion be considered as the defendants application for a full rehearing of the arbitrated matter.

(4) The defendants application for a full rehearing of the arbitrated matter be granted.

(5) Any further order that the court deems appropriate.

(6) Costs of this Motion be costs in the cause.

4 The applicant relied on an Affidavit of Paul John Angus, Solicitor sworn 5 October 2006. Mr Angus conceded that a copy of the Arbitrator’s Award with the date of sending notice noted as 24 July 2006 was sent by the Registrar. He could not say when the document was received by his office. He deposed that his firm he received instructions to file an Application for Rehearing. He deposed that his office had sought advice from the Registry Office and was informed that the last day for filing the application was 31 August 2006. He sought to file the application on that day. It was rejected by the Registry as being out of time.

5 He sought the extension of time on the basis that it was an oversight or error by his office, or delay in providing instructions by his client, which led to the delay.

6 He deposed that the plaintiff had not suffered any prejudice as a result of the late filing of the Application for Rehearing and said if there was any prejudice, it could be cured by a costs order.

7 The respondents relied on an Affidavit of Charly Tennous, sworn 17 October 2006. He referred to telephone conversations had with the solicitors for the defendants on 31 August. He was told that the defendants wished to file an Application for Rehearing in subsequent conversations. The respondents also relied on an Affidavit of Loranes Boutros, sworn 17 October 2006. Ms Boutros annexed to her Affidavit Annexures A to L which appeared to set out the whole of the evidence in relation to the Arbitration Hearing, and a large number of documents which, in my view, were not relevant to the application presently before the court. I will however refer to some of the annexures when giving my reasons and decision.

8 The plaintiff sued the defendants to recover the sum of $21,315.01 being the cost of the repairs to the plaintiff’s motor vehicle as a result of a collision with a vehicle owned by the first defendant and being driven by the second defendant. The defendants brought a Cross Claim for the costs of repairs to the defendants’ vehicle in the sum of $3,296.56. By consent the matter was referred to arbitration. The Arbitrator handed down her award on 7 July 2006. The Cross Claim was dismissed. It was not in dispute that the Arbitrator’s Award and Registrar’s Notice was sent by the Registrar on 24 July 2006. The defendant/applicant sought to file the rehearing application on the 31 August 2006.

9 Pursuant to s40 of the Civil Procedure Act, an Award is final and conclusive and is taken to be a judgment of the court at the expiration of 28 days after it is sent to all of the parties. S42 provides that a person aggrieved by an Award may apply the court for a rehearing and s43 provides that the court must order a rehearing of proceedings, the subject of an Award if an Application for Rehearing is made before the Award takes effect. In this matter it was not in dispute that the Application for Rehearing was sought to be filed on the 31 August 2006 after the Award took effect.

10 The matter proceeded before me in the Thursday morning Motion List on 19 October 2006. It was a very busy and stressful day. This matter was one of the first or second matters to be heard in a list of about twenty. In hindsight it would have been better if the matter had been adjourned to a time when the court could devote more time to the matter and to give the representatives more time to develop their arguments. In this judgment I believe I will adequately cover all of the submissions which were made. However, this is an interlocutory application. For more abundant caution I propose to prepare the judgment on the basis of my notes of the submissions. I propose however to consider judgment as setting out preliminary views and before making final orders, I propose to give the parties a further opportunity to make further submissions if they or either of them wish to do so.

11 The applicant’s application for an extension of time to file a Notice of Motion for Rehearing raised the following issues:

i. The plaintiff/respondent argues that the court does not have the power to extend the time provided in the Civil Procedure Act for the filing of the Rehearing Application and accordingly the applicant’s application must fail.

ii. There is an issue as to when the Award in this matter was taken to be a judgment of the court.

iii. If the court decides that it has power to extend the time for the filing of the application, whether such extension of time should be allowed on discretionary matters.

12 The Arbitrator’s Award was sent by the Registrar with a notice indicating it was sent on 24 July 2006. S40 of the Civil Procedure Act provides as follows;

S40 – Subject to s41 and div.3 an Award is final and conclusive and is taken to be a judgment of the referring court;

(a) If it is expressed to be made by consent of all the parties on the date on which it is received by the referring court, or

(b) in any other case at the expiry of 28 days after it is sent to all of the parties.

13 Sub-section 40(a) did not apply, so s40(b) did apply, and as the Award was sent on 24 July, the Award “is taken to be a judgment of the referring court 28 days after it is sent”, which on my calculation would be 22 August 2006.

14 S42 provides the right to apply for a rehearing as follows;

42.1

(1) A person aggrieved by an Award may apply to the referring court for a rehearing of the proceedings concerned.

(2) The application may (but need not) request that the hearing be a full rehearing or a limited rehearing.

(3) The Award is suspended from the time the application is made until an order for rehearing is made.

15 It will be seen that s42 does not explicitly limit the time within which an Application for Rehearing must be made. By deduction that is provided for by a combination of s40 and s43.

16 S43 of the Civil Procedure Act provides:

S43

must

(2) …

(3) …

(4) …

(5) …

(6) …

(7) …

17 Whilst the combination of s40, s41 and s42 would appear to make clear that the Award takes effect 28 days after it is sent to all of the parties (the 22nd of August 2006 in this matter) the position is complicated by the provisions of r36.11 which provides as follows:

R36.11

(2) Unless the court orders otherwise, a judgment of the court is taken to be entered:

(a) In the case of a court that uses a computerised court record system when it is recorded in that system, or

(b) In any other case, when it is recorded, in accordance with the practice of the court, as having been entered.

(3) …

(4) …

18 The Local Court uses a computerised court record system. A copy of the judgment of the court sealed by the court was tendered in these proceedings. The certified copy of the judgment specifies that the judgment was entered on 29 August 2006.

19 Pursuant to r36.11 the court regards the date of judgment as being 29 August 2006.

20 R36.4 provides:

(1) A judgment or order takes effect;

(a) as of the date on which it is given or made, or

(b) if the court orders that it not take effect until it is entered as of the date on which it is entered.

(2) …

(3) Despite sub-rules (1) and (2) the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those sub-rules.

21 The learned authors of Ritchies Uniform Civil Procedure NSW (36.4.5) take the view that judgments and orders that have been pronounced in court generally take effect on the date they are made. If judgment is given otherwise than in court (for example where default judgment is entered) it takes effect on the formal entry of the judgment.

22 The learned authors further argue (s42.1.5);

‘Because the award is taken to be a judgment of the court (s40(1) of the Civil Procedure Act) it must be ‘entered’ (r36.11) and although it would ordinarily take effect when the order or judgment was ‘given or made’ (r36.4), it is difficult to apply this expression literally to an award which only operates as a judgment by virtue of s40 of the Civil Procedure Act. Accordingly it may be arguable that the Award does not relevantly take effect until it has been entered as a judgment.’

23 I have come to the contrary view. I am satisfied that effect has to be given to the explicit statement in s40(1) of the Act, that the Award is taken to be a judgment of the referring court at the expiry of 28 days after it is sent to all of the parties.

24 The requirement for the Award of the Arbitrator to be served on each of the parties is set out in r20.11.4 as follows:

As soon as practicable after receiving an Arbitrator’s Award, the Registrar must send to each of the parties a copy of the Award with the date of sending set out in the Award or in a notice accompanying the Award.

25 Form 25 is the prescribed form and includes the following notice;

Unless a party files a Notice of Motion seeking a rehearing before the court and pays the prescribed fee within 28 days of the date of sending this Notice, this Award will be deemed to be a judgment of the court.

26 That Notice was signed by a Registrar of the court. In my view the Notice signed by the Registrar was a contrary order as provided by r36.11.2 which provides:

Unless the court otherwise orders a judgment or order is taken to be entered:

(a) In the case of a court that uses a computerised record system when it is recorded in that system.

I find that a party receiving a formal Notice from the Registrar of the Court is entitled to believe and to act on the advice contained therein. The plaintiff would be entitled to believe that the award would become a judgment of the court on the day after the expiration of the 28 day period and not on some further day when the resources of the court permitted the judgment to be entered in the computer system of the court.

27 I am satisfied that the correct date of the judgment should have been 22 August 2006.

28 My finding in relation to this aspect of the matter does not affect the principal argument before the court. If the correct date of judgment was 22 August, then in attempting to file the Application for Rehearing on 31 August, the applicant/defendants, was ten days out of time. If the correct date was 29 August, then the applicant/defendants, was two days out of time.

DOES THE COURT HAVE POWER TO GRANT A RE-HEARING APPLICATION MADE AFTER THE EXPIRATION OF THE 28 DAY PERIOD AND AFTER JUDGMENT WAS ENTERED?

29 Prior to the introduction of the Civil Procedure Act it was accepted that the Local Court had the power to extend the time for the filing of the Rehearing Application on discretionary grounds following the decision of the New South Wales Court of Appeal in El Ali v G.I.O. of NSW (1988) 15 NSWLR 303. The Local Court had similar rules to the District Court. In that matter Phelan DCJ extended the time for the filing of a Rehearing Application where the application had been lodged four days out of time.

30 The District Court Act provided that the Award of the Arbitrator:

Shall, after the expiration of the time prescribed by the Rules for the purpose of this sub-section, be deemed to be a judgment or order of the court.

31 The District Court Rules Pt51A, rA provided for the purposes of s63A(5) of the Act, the time prescribed is:

(a) …

(b) In any other case the period of 28 days immediately following the date so endorsed.

32 Kirby P found in that case that the reference in the Act to “the time prescribed by the Rules for the purposes of this sub-section” referred not only to the specific r51A, r8, but incorporated other rules including the general power of extension provided in Pt3 r2 as follows:

1. The court may on terms by order extend or abridge any time fixed by the Rules or by any judgment or order.

2. The court may extend the time under sub-rule 1 as well after as before the time expires whether or not an application for the extension is made before the time expires or at all.

33 The Court of Appeal agreed that such general power was available to the court because of the reference in the particular section in the Act to the Rules of the court and allowed the extension of time.

34 Mr Carolan for the plaintiff/respondent argued that the procedure adopted to enable the extension to be made in El Ali was not available in this matter, because the statutory provisions in the Civil Procedure Act in relation to the time for the filing of a Rehearing Application were provided in the Statute and are not reliant upon the Rules as was the case in El Ali.

35 Mr Carolan submitted that the court does not have power to extend the time for the filing of the Rehearing Application, because the court is not given that power by the Statute. He submitted that the decision not to give the court power was a deliberate one. He submitted in effect that the policy which emerges from the Civil Procedure Act is the same as applied under the Arbitration (Civil Actions) Act, namely to provide a more informal, speedier and less costly venue for the resolution of the disputes, which would in this case be otherwise heard in the Local Court (see El Ali p306, Lg).

36 Moreover, he submitted the Civil Procedure Act adopted the same regime for an appeal as did the Arbitration (Civil Actions) Act. His Honour Kirby P described it as “A most handsome method of review”, but it was one conditional upon prompt action by the disaffected party.

37 Mr Carolan submitted that the legislature had intended in drafting the Civil Procedure Act, that the disaffected litigant following an Arbitration, could exercise a right of appeal as of right provided it was done within 28 days of the date of the sending out by the Registrar of the Award. He submitted that given the election of the parties to go to Arbitration, the parties should be required to accept the Award of the Arbitrator, unless they exercise the right of appeal within the period of 28 days. He submitted it was important for this court to recognise the finality of judgments.

38 Mr Angus for the applicant, submitted that it would be extraordinary if the legislature intended to single out the appeal period for a Rehearing Application from an Arbitrator to be the only appeal period in relation to which a court had no discretion to extend the time, if the application was made out of time. He pointed out that was not the position in any appeal from the Local Court to the District Court, or from the District Court to the Supreme Court, or in any other appeal process within the court system in this State. He submitted that the application was sought to be filed just two days outside the specified period.

39 I have come to the same view as the learned authors of Ritchies Uniform Civil Procedure NSW as expressed by them at paras 42.15. I am satisfied that the combination of s42.1:

A person aggrieved by an Award may apply to the referring court for a rehearing of the proceedings concerned.

And s43:

The referring Court must order a rehearing of proceedings the subject of an Award if an Application for Rehearing is made before the Award takes effect

does not exclude a discretion to hear an application filed after the Award takes effect.

40 I am satisfied that the legislature must have been aware of the decision in El Ali v GIO (NSW) and must have been aware that the Local and District Courts were frequently relying on that decision to grant applications for a rehearing made after the Award took effect. I have considered carefully the principles of statutory interpretation as set out by the learned authors Pearce and Geddes at para 5.33 of their publication ‘Statutory Interpretation in Australia. In my view based on those principles it would require very clear and unmistakable language before the Act could be interpreted as depriving the court of that right. Again, based on general principles of statutory interpretation, if the legislature intended to grant a right of appeal which would be completely lost if not exercised within a prescribed period, then the provision prescribing the time limit would be expected to be clearly defined. Clarke AJA specifically referred to this principal in El Ali (P315 LF) as follows: -

The clear thrust of the appellant’s submission is that the terms of s18 of the Act disclose a legislative intent to restrict applications, which have the drastic effect of setting awards at nought, to cases in which an application is made within the strict time-limit. This argument would have much to recommend it if the legislature had fixed the period of twenty-eight days in the District Court Act s 63A. There would then be an intention to fix an inflexible period which was not alterable under the District Court Rules, Pt 3, r 2.
However, the legislature did not take that course. It would, no doubt, have been aware that where time limits are concerned there is a need for a degree of flexibility to avoid injustice arising in cases where strict adherence to a time limits is required. If, for instance, the Registrar of the Curt had sent to the parties a properly endorsed copy of the award in compliance with Pt 51A, r7 (4), and the award had gone astray in the post so that one of the parties did not receive it until twenty-nine days after the date of posting (a not uncommon event today) then it would clearly be unjust to disallow that party the right seeking a re-hearing. In those circumstances it is not difficult to perceive that the legislature intended, by providing for a time to be stipulated by the rules, that any relevant power in the rules to extend time should apply to the time so fixed. If that is correct there is no reason for reading down the clear terms of District Court Rules, Pt 3, r 2, so that it does not apply when an application for extension is made after the expiry of a time prescribed in District Court Rules, Pt 51A, r 8.

It is said by the appellant that upon the expiry of twenty-eight days during which there has been no application for an extension the award is deemed to be a judgment or order of the court. So much can be accepted. But once an application for extension was made and granted then the award would not be deemed to be such a judgment until the expiration of the extended period. To put it another way the granting of an order extending time would substitute for the period of twenty-eight days the extended period so that notwithstanding anything which occurred previously the award would not be deemed to be a judgment or order of the court until the expiry of that new period.
It may be thought that the award may have been deemed to be a judgment of the court upon the expiry of twenty- eight days from the date of the sending of the award to the parties and continued as such until a judge made an order extending the time and that it thereafter ceased to be deemed to be a judgment. However this situation invariably occurs when an application is made to extend a time provided by the rules after that time has expired.

41 As Kirby P pointed out in El Ali v GIO of NSW (p309, Ld):

Time limits must be respected and enforced, but the administration of justice has come a long way since, in the nineteenth century, such rigidity, inflexibly applied frequently caused substantial injustice. That is why provisions such as Pt3 r2 have been made and regularly, for good purpose applied in the District Court.

42 The Uniform Civil Procedure Rules has a similar rule 1.12 as follows:

1.12

(1) The court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. The court may extend time under this rule either before or after the time expires and may do so after the time expires even if an application for extension is made after the time expires.

43 I do not suggest that r1.12 can be applied to the Application presently before the court to enable the application to be granted. However, having found that the power is implied under the sections, I am satisfied that the application to extend the time can be considered upon discretionary matters generally considered and applied in applications under r1.12.

44 I am satisfied that to deny the court the discretion to consider rehearing applications filed out of time will create substantial injustice. There is apparently one Motion awaiting hearing where the rehearing application was lodged in time but an incorrect fee tendered. The Motion was rejected but was not returned to the party until after the 28 day period had expired and judgment entered. For the court not to have a discretion in a matter such as that would create an injustice. Similar difficult cases occur due to the illness of practitioners.

45 There is one further argument which, if correct, would make it even more unlikely that the legislature intended to establish an absolute appeal period of 28 days for the filing of the Rehearing Motion with no further discretion. If my finding (para 27) as to the date the judgment took effect was wrong and the correct date was 29 August when the judgment was entered in the computer, then there would be no absolute or fixed period of appeal limited to 28 days. An application for rehearing could be lodged any time after the 28 day period provided it was lodged before the judgment was entered. In this case of course the judgment was not entered until 29 August. That situation is entirely at odds with an intention of the legislature to fix an appeal period of 28 days with no discretion.

46 Mr Angus for the applicant, sought to rely on some advice received through a clerk of the Downing Centre Civil Registry. Interestingly Mr Tennous the respondent’s solicitor acting for the respondent also relied on advice from a clerk of the Registry Office. It does not impress me at all that solicitors who would seek to charge their client for their time at rates possibly in excess of $300 per hour, would, when giving advice to their clients seek to rely on advice of an unqualified and perhaps very junior member of the staff of the Registry. It is a practice which should be discouraged especially if the advice sought is as to when something will happen. Having said that, Ritchies Uniform Civil Procedure NSW does acknowledge an argument that the time limit does not expire until the judgment is entered in the court system via the computer, which may have in fact extend the 28 day period. That was the practice of the court in this matter. In those circumstances one could appreciate practitioners seeking to know if the judgment had been entered in the computer as, if not, the time limit would not have expired. In my view such considerations very strongly support the finding I made at para 28 that the judgment takes effect the day following the expiration of the 28 day period.

47 Mr Angus sought to rely on the confusion as to when the judgment took effect. He submitted that the delay was not great and based on the practice of the court, was only of two days.

48 Mr Angus disclosed in his Affidavit that he was instructed to act for the defendants by the subrogated motor vehicle insurer, Alliance Australia Insurance Ltd. That is a matter which I believe I am entitled to take into account when exercising my discretion. It provides some evidence that if the plaintiff is successful on the rehearing and holds his judgment, barring a catastrophe, there should be no difficulties in his obtaining payment of the judgment and his costs. If the plaintiff is unfunded there may well be an inequality in the ability to meet legal costs and disbursements pending any rehearing, which is a matter I take into account.

49 The plaintiff will, if he is successful at the rehearing, have suffered a delay in his receiving the fruits of the litigation. He will be subject to the stress and strain invariably involved in any litigation for an additional period.

50 I have taken all of the above matters into consideration. Kirby P held that substantial reasons need to be given to disturb the finality of an award which has become a judgment of the court. Except for one matter I am not persuaded that substantive reasons exist in this matter. The form of the rehearing application is extraordinarily simple. It does not require any grounds to the stated. The appeal xx is of right. In those circumstances I am not satisfied that reasons such as delay in receiving instructions or error on the part of the solicitor are sufficient.

51 The one matter which causes me to exercise my discretion in favour of the applicant was the doubt as to when the award took effect as a judgment of the Court. I have found the practice adopted by the Court in this matter to be wrong. I am satisfied that the confusion over that matter entitled me to grant the application and to extend the time for the filing of the Motion for Rehearing to be extended to to-day

52 I am satisfied that I have a discretionary power to extend the time for the filing of the rehearing application. Based on the practice of the court the delay was only two days. There is certainly some ambiguity in the Act. The prejudice to the defendant outweighs the prejudice to the plaintiff. I propose to extend the time on the basis that some of the prejudice to the plaintiff can be minimised by setting the matter down for hearing at an early date. I would hope to be able to offer the parties a date in December.

53 Practitioners should be aware that my decision as to the date when the award takes effect as a judgment removes any confusion as to the date by which the Rehearing application is to be filed. It follows that the principal basis upon which the discretion has been exercised in the matter will no longer be available

Is there a need for an application to set Judgment aside? – R.36.15 – R36.17

54 I am satisfied on the authority of El Ali than an application to set aside the judgment is not required. The effect of the order extending the time for filing of the rehearing application, which is then taken to be filed, is to set aside the judgment. This view was supported by Clarke AJA in El Ali as follows (P316 LB copy 2)

55 However if I had not exercised my discretion in favour of granting the application then it would appear that the applicant could apply to have the judgment set aside. Kirby P in El Ali stated (P308 L.G)

They may only be set aside in limited circumstances provided under the defined parts of the District Court Rules (eg Pts 13,17 & 31)”

56 His Honour Judge xxx came to the same view in Majestic v Brough (1986) 5 NSWLR 393

57 The equivalent power under the Civil Procedures Rules is R.36 15(1)

A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by the order of the court if the judgment was given or entered, or the order was made, irregularly, illegibly or against good faith.

58 I am not required to finally determine this aspect of the matter. It would appear however that the power of the court under R 36(15)(1) may assist where there is an error by the court (as in the case of the Registrar wrongly rejecting a Rehearing Application made within time). I do not see how it would otherwise assist the Applicant in this matter. Significantly the Court of Appeal found the Court had the discretion in El Ali notwithstanding the availability of the equivalent of R.36.15.1 in the District Court Rules.

59 The matter has raised some interesting considerations for the court. His Honour Kirby P referred to the policy behind the arbitration system as providing for a more informal, speedier and less costly venue for the resolution of disputes. I note with interest that in this matter, which involved a motor vehicle accident between two cars and a claim for damages of $21,315.01 and which was heard at arbitration within a day, that the solicitor for the successful plaintiff assessed his costs at $14,394.00. It is not a matter, in my view, which affects the exercise of my discretion to extend the time, but it does enliven the debate as to the practical worth to the parties and to the court in referring any matters to arbitration.

60 I shall hear from the parties as to any further submissions which they wish to make in relation to my proposed findings. I would propose that the applicant/defendant would have to pay the plaintiff/respondent’s costs and disbursements of the Motion, but I will hear from the parties on the question of costs.

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Citations

Nittis v Strand Bags Group Ltd [2006] NSWLC 47

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R v Hartwick (No 2) [2002] VSC 423

CITATION:	Nittis v Strand Bags Group Ltd [2006] NSWLC 47
JURISDICTION:	Civil
PARTIES:	George Nittis Strand Bags Group Ltd Cheryle Anne Aitken
FILE NUMBER:	1437/06
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	11/10/2006
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Practice - Whether party able to file application for re-hearing of arbitration matter outside the 28 day period - Whether court has power to grant leave.
LEGISLATION CITED:	Uniform Civil Procedure Rules 20 - r 20.12, r 36.15(1), r 36.11, r 36.4, r 20.11.4, r 36.11.2, r1.12
CASES CITED:	Eli v GIO of NSW (1988) NSWLR 303 Majestic v Brough (1986) 5NSWLR 393
REPRESENTATION:	Counsel for Plaintiff: Mr Carolan Solicitors for Plaintiff: Sage Solicitors Advocate for Defendant : Mr P.J. Angus – Solicitor Solicitors for Defendant: Turk Solicitors
ORDERS:	Application granted.