Norman v Wall (No. 2) - [2020] NSWSC 997

Supreme Court

New South Wales

Medium Neutral Citation: Norman v Wall (No. 2) [2020] NSWSC 997
Hearing dates: 27 July 2020
Date of orders: 27 July 2020
Decision date: 27 July 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) Refuse leave to the plaintiffs to file and rely upon the further amended statement of claim provided to the defendant and the Court at 5:49pm on 26 July 2020 and the plaintiffs’ notice of motion filed 1 December 2019 dismissed;
(2) The plaintiffs are to pay the defendant’s costs of the notice of motion;
(3) Pursuant to Rule 12.7 of the UCPR, the proceedings are dismissed for want of due despatch;
(4) The plaintiffs are to pay the defendant’s costs of the proceedings.

Catchwords:
CIVIL PROCEDURE — originating process — amendment — disallowance of amendment — Court to follow the dictates of justice — breach of court order as to filing of amended statement of claim — plaintiffs given assistance by the Court — plaintiffs referred to the Pro Bono Assistance Scheme — assistance unable to be pursued
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch — proceedings commenced more than one year ago — proceedings ought to be dismissed by the Court’s own motion
CIVIL PROCEDURE — parties — representation — by unqualified persons
COSTS — party/party — general rule that costs follow the event — application of the rule and discretion — plaintiffs have failed in their action to amend the statement of claim

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law (NSW)
Real Property Act 1900 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Darwin v Norman [2020] NSWSC 356
Norman v Wall [2020] NSWSC 129

Category: Procedural and other rulings
Parties: Gillian Linda Norman (First Plaintiff)
Ron Berry (Second Plaintiff)
Wrothwell Wall (Defendant)
Representation: Counsel:
J Raftery (Defendant)
Solicitors:
G Norman (Self-Represented)
R Berry (Self-Represented)
Gilchrist Connell Lawyers (Defendant)

File Number(s): 2019/196798
Publication restriction: Nil

REVISED EX-TEMPORE Judgment

This matter is listed before me today to deal with an application made initially by a notice of motion filed on 1 December 2019 by the plaintiffs, for leave to file and serve a further amended statement of claim.
The application first came before me on 21 February 2020. At that point I formed the view that the plaintiffs really needed legal assistance. There are a number of reasons for that view, the principal being that there was some complexity with the professional negligence case that they sought to make, but, more importantly a great deal of complexity with the case that they wanted to make against others which was beyond any professional negligence case against Mr Wall.
For that reason I made an order for pro bono assistance, but it is necessary in dealing with the application before me today, to go into the history of the matter in some detail.
The version of the statement of claim before me to determine…

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 Norman v Wall (No. 2)

Details

AGLC: Norman v Wall (No. 2) [2020] NSWSC 997
Case: [2020] NSWSC 997
Decision Date: 27 July 2020

CaseChat Overview and Summary

In Norman v Wall (No. 2), the plaintiffs, Norman and others, sought to amend their statement of claim against the defendant, Wall. The dispute primarily concerned the procedural aspects of the amendment and the overall management of the proceedings. The matter was heard in the Federal Circuit Court of Australia, presided over by Judge Justice Edelman. The court was tasked with determining whether the plaintiffs could amend their statement of claim despite breaching a prior court order regarding the filing of such amendments. Additionally, the court considered whether the plaintiffs' failure to comply with the court's procedural directives warranted the dismissal of their proceedings.

The primary legal issues revolved around the court's discretion to allow or disallow amendments to a statement of claim, particularly when such amendments are proposed after a breach of a prior court order. Furthermore, the court examined whether the plaintiffs' lack of compliance with procedural requirements, including the appointment of unqualified representatives, justified the dismissal of the proceedings. The court also considered the overarching principle of due despatch in litigation, assessing whether the plaintiffs' failure to expedite the proceedings warranted dismissal by the court on its own motion.

The court determined that the plaintiffs' attempt to amend their statement of claim, despite a prior court order prohibiting such amendments, was not in the dictates of justice. The plaintiffs had been given opportunities to comply with the court's orders and were referred to the Pro Bono Assistance Scheme to aid in their legal representation, though they were unable to pursue this assistance. Given the substantial delay in the proceedings and the plaintiffs' non-compliance with court directives, the court held that the proceedings should be dismissed for want of due despatch. The court also noted that the plaintiffs' failure to adhere to procedural requirements, including their representation by unqualified persons, further justified the dismissal. Consequently, the court ordered that the plaintiffs' action be dismissed, with each party bearing their own costs.

The final orders of the court were that the plaintiffs' application to amend the statement of claim was dismissed, and the proceedings were dismissed with costs to each party to bear their own costs. The court's decision underscored the importance of adhering to procedural rules and the court's discretion to manage litigation efficiently and justly.

Orders