Prince v Malouf - [2012] NSWCA 234

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Prince v Malouf [2012] NSWCA 234
Hearing dates: 23 July 2012
Decision date: 23 July 2012
Before: Basten JA
Decision:
(1) Respondent to file and serve a six page summary of the issues and findings he seeks or resists in relation to the appeal and cross-appeal, including cross-references to the paragraphs of his combined submissions filed 18 July 2012, by 14 August 2012.
(2) Vacate order 1 made on 3 July 2012 and direct the appellant to file and serve submissions in response on the cross-appeal, limited to 20 pages, and a reply on the appeal limited to 10 pages, by 10 September 2012.
(3) Vacate order 2 made on 3 July 2012 and direct the respondent to file and serve submissions in reply on the cross-appeal, limited to 10 pages, by 8 October 2012.
(4) The orange book to be filed by 3 December 2012.
(5) Notice of motion of 26 June 2012 otherwise dismissed.
(6) Respondent to pay the appellant's costs of today, payable forthwith.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL - procedure - written submissions - party's written submission exceed the length prescribed by the Uniform Civil Procedure Rules 2005 (NSW) - whether there is a public interest in compliance with time and page limits - Uniform Civil Procedure Rules 2005 (NSW), r 51.36(1)
APPEAL - procedure - statement of challenges to findings of fact - whether Uniform Civil Procedure Rules 2005 (NSW) require that statements be clearly identified and separate to written submissions - Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)
Legislation Cited: Supreme Court Act 1970 (NSW), s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), rr 51.17, 51.36, 51.37
Cases Cited: Hamod v State of New South Wales [2011] NSWCA 375
Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57
Insurance Australia Limited v Checchia [2010] NSWCA 193
Sullivan v Stefanidi [2009] NSWCA 313
Category: Procedural and other rulings
Parties: Stephen Thomas Prince (Applicant)
John Joseph Malouf (Respondent)
Representation:
Counsel:

Mr T K Tobin QC/Mr P D Herzfeld (Applicant)
Mr A T S Dawson/Ms A Rao (Respondent)
Solicitors:
Walters Solicitors (Applicant)
Walsh Halligan Douglas (Respondent)

File Number(s): CA 2012/74304
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-12-09 00:00:00

Before:

McLoughlin DCJ

File Number(s):

DC 2008/317910

Judgment

BASTEN JA: In 2006, Dr Stephen Prince, an ear, nose and throat surgeon based in Lismore, wrote letters to various persons complaining about the treatment provided by Dr John Malouf at Grafton Base Hospital. Proceedings were brought by Dr Malouf in defamation by way of a statement of claim filed 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.

Continue reading Prince v Malouf

Details

AGLC: Prince v Malouf [2012] NSWCA 234
Case: [2012] NSWCA 234
Decision Date: 23 July 2012

CaseChat Overview and Summary

In *Prince v Malouf*, the appeal concerned the proper procedure for filing written submissions and statements of challenges to findings of fact in the New South Wales Court of Appeal, specifically in relation to Uniform Civil Procedure Rules 2005 (NSW) r 51.36(1) and r 51.36(2). The dispute arose from the appellant's written submissions exceeding the prescribed length and the respondent's subsequent notice of motion seeking to dismiss the appeal on this basis.

The primary legal issues before the Court were whether there was a public interest in strict compliance with the time and page limits for written submissions stipulated by r 51.36(1), and whether r 51.36(2) required statements of challenges to findings of fact to be clearly identified and separate from written submissions.

Basten JA considered the purpose of the rules, which is to ensure efficiency and manage the court's workload. His Honour noted that while compliance with page limits is important, the Court retains discretion to permit extensions or variations where appropriate, particularly when the substance of the appeal warrants it. The Court determined that the respondent's notice of motion should be dismissed, but it also made orders to regularise the filing of submissions, requiring the respondent to file a six-page summary of issues and findings, and vacating previous orders to allow for revised and limited further submissions from both parties. The Court also directed the filing of an "orange book" by a specified date.

Orders

Orders of the court

(1) Respondent to file and serve a six page summary of the issues and findings he seeks or resists in relation to the appeal and cross-appeal, including cross-references to the paragraphs of his combined submissions filed 18 July 2012, by 14 August 2012.

(2) Vacate order 1 made on 3 July 2012 and direct the appellant to file and serve submissions in response on the cross-appeal, limited to 20 pages, and a reply on the appeal limited to 10 pages, by 10 September 2012.

(3) Vacate order 2 made on 3 July 2012 and direct the respondent to file and serve submissions in reply on the cross-appeal, limited to 10 pages, by 8 October 2012.

(4) The orange book to be filed by 3 December 2012.

(5) Notice of motion of 26 June 2012 otherwise dismissed.

(6) Respondent to pay the appellant's costs of today, payable forthwith.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Prince v Malouf [2012] NSWCA 234
Hearing dates:	23 July 2012
Decision date:	23 July 2012
Before:	Basten JA
Decision:	(1) Respondent to file and serve a six page summary of the issues and findings he seeks or resists in relation to the appeal and cross-appeal, including cross-references to the paragraphs of his combined submissions filed 18 July 2012, by 14 August 2012. (2) Vacate order 1 made on 3 July 2012 and direct the appellant to file and serve submissions in response on the cross-appeal, limited to 20 pages, and a reply on the appeal limited to 10 pages, by 10 September 2012. (3) Vacate order 2 made on 3 July 2012 and direct the respondent to file and serve submissions in reply on the cross-appeal, limited to 10 pages, by 8 October 2012. (4) The orange book to be filed by 3 December 2012. (5) Notice of motion of 26 June 2012 otherwise dismissed. (6) Respondent to pay the appellant's costs of today, payable forthwith. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - procedure - written submissions - party's written submission exceed the length prescribed by the Uniform Civil Procedure Rules 2005 (NSW) - whether there is a public interest in compliance with time and page limits - Uniform Civil Procedure Rules 2005 (NSW), r 51.36(1) APPEAL - procedure - statement of challenges to findings of fact - whether Uniform Civil Procedure Rules 2005 (NSW) require that statements be clearly identified and separate to written submissions - Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW), rr 51.17, 51.36, 51.37
Cases Cited:	Hamod v State of New South Wales [2011] NSWCA 375 Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57 Insurance Australia Limited v Checchia [2010] NSWCA 193 Sullivan v Stefanidi [2009] NSWCA 313
Category:	Procedural and other rulings
Parties:	Stephen Thomas Prince (Applicant) John Joseph Malouf (Respondent)
Representation:	Counsel: Mr T K Tobin QC/Mr P D Herzfeld (Applicant) Mr A T S Dawson/Ms A Rao (Respondent) Solicitors: Walters Solicitors (Applicant) Walsh Halligan Douglas (Respondent)
File Number(s):	CA 2012/74304
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-12-09 00:00:00 Before: McLoughlin DCJ File Number(s): DC 2008/317910