The Prothonotary of the Supreme Court of New South Wales v Chapman

The Prothonotary of the Supreme Court of New South Wales brought proceedings against Chapman in the Court of Appeal of New South Wales. The dispute concerned the Prothonotary's application for an order striking out Chapman's defence and entering judgment for the Prothonotary, or alternatively, for an order striking out Chapman's defence and dismissing his cross-claim. The Prothonotary sought these orders on the basis that Chapman had failed to comply with orders of the court, specifically an order made on 17 May 1991 requiring him to deliver interrogatories and an order made on 14 August 1991 requiring him to file and serve an affidavit of documents.

The central legal issues before the Court of Appeal were whether Chapman had shown sufficient cause for his failure to comply with the earlier court orders and whether the Prothonotary had established that Chapman had no reasonable prospect of success in his defence or cross-claim. The court was required to consider the appropriate principles to apply when determining whether to strike out a defence and cross-claim for non-compliance with discovery orders, and the threshold for demonstrating no reasonable prospect of success.

The Court of Appeal reasoned that the Prothonotary had not discharged the onus of demonstrating that Chapman had no reasonable prospect of success in his defence or cross-claim. While acknowledging Chapman's failure to comply with the court's orders, the court found that the evidence did not establish that his case was so weak as to warrant its dismissal without a trial. The court applied the principle that striking out a defence and cross-claim is a drastic remedy and should only be ordered in clear cases where there is no reasonable prospect of success. The court also considered the nature of the orders sought by the Prothonotary, noting that they were aimed at preventing Chapman from pursuing his case due to procedural defaults rather than on the merits of his substantive claims.

The Court of Appeal ordered that the Prothonotary's appeal be dismissed.