Toth v State of NSW - [2019] NSWDC 148

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 31.4
Cases 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 344
Category: Procedural and other rulings
Parties: Andrew Toth (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
Plaintiff in person
Mr G Bateman (Defendant)
Solicitors:
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

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.

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Details

Case: [2019] NSWDC 148
Decision Date: 29 April 2019

CaseChat Overview and Summary

Toth v State of NSW involved a claim brought by the plaintiff, Toth, against the defendant, the State of New South Wales. Toth sought damages for an alleged road accident, but the State moved to dismiss the proceedings or strike out the amended statement of claim on the grounds that it was not compliant with the requirements of the Uniform Civil Procedure Rules. The case was heard in the Supreme Court of New South Wales.

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.

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 31.4
Cases 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 344
Category:	Procedural and other rulings
Parties:	Andrew Toth (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Plaintiff in person Mr G Bateman (Defendant) Solicitors: Plaintiff in person James Lonsdale, Acting Crown Solicitor (Defendant)
File Number(s):	2018/334165
Publication restriction:	None

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