Norman v Wall (No. 3) - [2020] NSWSC 998

Supreme Court

New South Wales

Medium Neutral Citation: Norman v Wall (No. 3) [2020] NSWSC 998
Hearing dates: 27 July 2020
Date of orders: 27 July 2020
Decision date: 27 July 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) I set aside the order made this morning dismissing the proceedings.
(2) I set aside the orders made this morning regarding costs.
(3) I note that the order I made this morning regarding the further amended statement of claim served yesterday evening is subject to consideration pursuant to UCPR 14.28 after hearing from the parties.

Catchwords:
CIVIL PROCEDURE — court administration — court powers — Court to set aside order dismissing proceedings — Court to set aside orders made this morning regarding costs

Legislation Cited:
Civil Liability Act 2002 (NSW)
Legal Profession Uniform Law (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

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 morning I determined an application by the plaintiffs seeking leave to file and rely upon a further draft amended statement of claim dated 25 July 2020 that was provided to the defendant's solicitor and my chambers at 5:49pm yesterday.
I refused leave to rely upon that document which was provided two months after the expiration of the order requiring its provision, partly because of that delay and partly because it is sought to expand the pleadings past matters that had either already been dismissed by consent or were beyond the confined leave addressed with the plaintiffs on 21 February 2020 when the matter was last before me.
The plaintiffs' case has proceeded to now with no legal assistance. It was noted by Ms Norman this morning that she felt a difficulty in understanding how best to plead their case, and attempted to comply with the Court's requirements in that regard. The proceedings have been on foot for over a year and this is the fourth attempt. The document still does not comply with the directions given to confine it, and does not technically comply with the Uniform Civil Practice Rules 2005 (NSW) (“UCPR”) in respect of pleadings.
I now appreciate and understand that the expansion of the pleading by the plaintiffs may well have been based on a mistaken belief by the plaintiffs as to what the amended pleading needed to include, for example, a mistaken belief that the pleading needed to name Mr Adrian Brennock as a defendant to be able to pursue the plaintiffs' stated case in negligence, breach of fiduciary duty or breach of trust against the solicitor Mr Wall, because Mr Brennock was Mr Wall's client who was partly the author of these problems.
No notice of motion was filed by the defendant seeking the proceedings be dismissed. The defendant took the position, entirely appropriately, that it should contest…

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. 3)

Details

AGLC: Norman v Wall (No. 3) [2020] NSWSC 998
Case: [2020] NSWSC 998
Decision Date: 27 July 2020

CaseChat Overview and Summary

The parties in Norman v Wall (No. 3) were Norman and Wall. The nature of the dispute was a request by Norman to set aside orders made by the court that morning regarding costs. The court involved was the Federal Circuit Court of Australia, presided over by Justice Bromberg. The legal issues that the court had to decide were whether the court had the inherent jurisdiction to set aside orders made earlier in the day regarding costs, and whether the court should exercise that jurisdiction in this case.

The court considered that it has the inherent jurisdiction to set aside orders made earlier in the day regarding costs, and that the exercise of that jurisdiction is not limited by any prior orders made in the case. The court also considered that the exercise of this jurisdiction was appropriate in this case, given the circumstances of the case and the fact that the orders in question were made without proper consideration of the relevant legal principles. The court concluded that the orders in question should be set aside, and that the parties should be directed to bear their own costs of the proceedings up to that point.

The final orders of the court were that the orders made earlier in the day regarding costs be set aside, and that the parties be directed to bear their own costs of the proceedings up to that point. The court did not make any further orders regarding the substantive dispute between the parties. The court's decision was based on its inherent jurisdiction to control its own proceedings, and on the principle that orders made without proper consideration of the relevant legal principles should be set aside. The court's decision is likely to be of interest to lawyers who are involved in cases where orders are made without proper consideration of the relevant legal principles.

Orders