Saltearn v Saltearn - [2015] NSWSC 582

Supreme Court

New South Wales

Medium Neutral Citation: Saltearn v Saltearn [2015] NSWSC 582
Hearing dates: 1 May 2015
Date of orders: 01 May 2015
Decision date: 01 May 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Parties directed to file a duly executed notice of discontinuance in accordance with their agreement within seven days, failing which the Registrar is authorised to execute the notice of discontinuance on behalf of the plaintiff. Plaintiff to pay the defendant's costs of today.

Catchwords: PROCEDURE – civil – settlement – agreement by plaintiff to discontinue proceedings on terms – where plaintiff subsequently changed his mind – whether agreement actually concluded – application of s 73 of Civil Procedure Act 2005 (NSW) to give effect to agreed discontinuance – where exercise of power would give effect to overriding purpose and s 56 of Civil Procedure Act 2005 (NSW) – where proceedings liable to be dismissed on the grounds stated in Bleyer v Google Inc
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 73
Cases Cited: Bleyer v Google Inc [2014] NSWSC 897
Smith v Lucht [2014] QDC 302
Category: Procedural and other rulings
Parties: Jason Saltearn (Plaintiff)
Decima Rosemary Saltearn (Defendant)
Representation:
Counsel:
Plaintiff in person
A Paterson (Defendant)
Solicitors:
Plaintiff (Self-represented)
Sarvaas Ciappara Lawyers (Defendant)

File Number(s): 2014/191429
Publication restriction: None

Judgment – Ex tempore

HER HONOUR: These are proceedings for defamation commenced by statement of claim filed 27 June 2014. On 9 October 2014, the plaintiff filed a notice of motion seeking leave to amend that pleading but that motion has not been determined. The plaintiff is Mr Jason Saltearn. The defendant is his mother. The publication on which Mr Saltearn would wish to sue is a publication by his mother to his father.
Following the first return of the proceedings before the Court, the proceedings were stood over on a number of occasions on the application of the plaintiff at a time when, I think, the defendant had not yet been served with either form of pleading. The defendant is now represented by Mr Paterson.
The application before the Court today is the defendant's application for orders to give effect to an alleged agreement between the parties arising from correspondence commencing on 9 April 2015. On that date, after Mrs Saltearn had obtained legal representation, a defence to the original statement of claim was filed. The solicitors expressed the view in that correspondence that the statement of claim did not disclose a proper cause of action and invited the plaintiff to discontinue his claim with no order as to costs. That was a concession to the usual position, which is that a discontinuance results in an order for costs in favour of the party against whom the proceedings have been discontinued.
The plaintiff responded in the following terms:

"Thank you for filing a defence on my mother's behalf which contains a number of falsifications and omissions, of which I have made note. I have decided to accept your offer to…

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 Saltearn v Saltearn

Details

AGLC: Saltearn v Saltearn [2015] NSWSC 582
Case: [2015] NSWSC 582
Decision Date: 01 May 2015

CaseChat Overview and Summary

In this case, the plaintiff sought to rely on an agreement to discontinue the proceedings. The defendant argued that the agreement was not binding. The dispute was heard by the Supreme Court of New South Wales. The court was required to determine whether the plaintiff's agreement to discontinue the proceedings was binding on him and, if so, whether the court should exercise its discretion under section 73 of the Civil Procedure Act 2005 (NSW) to give effect to the agreement.

The court held that the plaintiff's agreement to discontinue the proceedings was binding, and the court should exercise its discretion to give effect to the agreement. The court found that the exercise of this power would give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) and section 56 of the Civil Procedure Act 2005 (NSW), which provides that proceedings are liable to be dismissed if they are not being pursued with reasonable expedition. The court also found that the proceedings were liable to be dismissed on the grounds stated in Bleyer v Google Inc.

The court ordered that the plaintiff's proceedings be dismissed, with the plaintiff to pay the defendant's costs of the proceedings.

Orders