District Court
New South Wales
Medium Neutral Citation: Toth v State of NSW [2019] NSWDC 148 Hearing dates: 11 April 2019 Date of orders: 29 April 2019 Decision date: 29 April 2019 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [64] for orders.
Catchwords: CIVIL PROCEDURE – notice of motion by applicant defendant seeking to dismiss the applicant plaintiff’s proceedings pursuant to UCPR r 13.4, or alternatively, to strike out the respondent plaintiff’s amended statement of claim pursuant to UCPR r 14.28 – amended statement of claim struck out in part – case management directions for re-pleading of a further amended statement of claim and for evidence-in-chief to be by way of signed statements and document bundles – order for mediation Legislation Cited: Civil Procedure Act 2005 (NSW), s 26, s 56, s 57, s 58, s 61, s 63, s 67
Crimes Act 1900 (NSW), s 91L
Crimes (Administration of Sentences) Act 1999 (NSW), s 2A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, s 10
Crown Proceedings Act 1988 (NSW), s 5
Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005, r 13.4, r 14.28, Pt 15, r 15, r 15.5, r 31.4Cases Cited: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Cleary v Jeans [2006] NSWCA 9
Cox v Journeaux (1935) 52 CLR 713; [1935] HCA 48
Dey v Victorian Railways Commissioner (1949) 78 CLR 62; [1949] HCA 1
Dickens (a pseudonym) v State of New South Wales [2018] NSWCA 222
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Karam v Palmone Shoes Pty Ltd [2012] VSCA 97
Mohareb v Kelso [2017] NSWCA 98
Obeid v Lockley [2018] NSWCA 71
Paramasivam v Flynn (1998) FCR 489
Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393
Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344Category: Procedural and other rulings Parties: Andrew Toth (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
Solicitors:
Plaintiff in person
Mr G Bateman (Defendant)
Plaintiff in person
James Lonsdale, Acting Crown Solicitor (Defendant)
File Number(s): 2018/334165 Publication restriction: None
Judgment
Table of Contents
Notice of motion
[1]
The substantive proceedings
[2] – [3]
Factual background underpinning the proceedings
[4] – [7]
Respondent plaintiff’s grievances
[8] – [12]
Evidence relied upon at the hearing of the motion
[13]
Submissions of the applicant defendant
[14] – [17]
Submissions of the respondent plaintiff
[18] – [27]
Legal principles concerning summary dismissal
[28] – [33]
Legal principles concerning defective pleadings
[34] – [37]
Legislation
[38] – [39]
Determination
[40] – [58]
Consideration of the pleadings
[41] – [43]
Consideration in terms of UCPR r 13.4
[44] – [46]
Consideration in terms of UCPR r 14.28
[47] – [49]
Case management considerations
[50] – [58]
Disposition
[59]
Costs
[60] – [63]
Orders
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- Case
- [2019] NSWDC 148
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the amended statement of claim was deficient under the Uniform Civil Procedure Rules and, if so, what remedy was appropriate. The court had to consider the nature and extent of any deficiencies and the effect of these on the plaintiff's ability to effectively prosecute the claim. The court also had to determine whether dismissal or striking out was appropriate and whether any other orders should be made to facilitate the re-pleading and presentation of the case.
The court found that the amended statement of claim was deficient in several respects but not to the point of dismissal. The deficiencies included a lack of particulars and the failure to include a statement of truth. The court ordered that certain parts of the amended statement of claim be struck out but allowed the plaintiff to re-plead. The court directed that the further amended statement of claim should be supported by signed statements and document bundles, and that the parties should participate in mediation. The court considered these measures sufficient to enable the plaintiff to effectively prosecute the claim while maintaining the efficiency of the litigation process.
The final orders included the striking out of certain parts of the amended statement of claim, directions for the re-pleading of a further amended statement of claim, and an order for mediation. The court also directed that the evidence-in-chief should be by way of signed statements and document bundles. The orders were designed to ensure that the case could proceed in a manner that was just and efficient, while also providing the plaintiff with an opportunity to properly present their case.
Orders
Orders of the court
See paragraph [64] for orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.