Wright v Optus Administration (No 2) - [2013] NSWSC 1709

Supreme Court

New South Wales

Medium Neutral Citation: Wright v Optus Administration & Anor (No 2) [2013] NSWSC 1709
Hearing dates: 18 November 2013
Decision date: 21 November 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
The first defendant's motion filed in Court on the 18th of November 2013 is dismissed

Catchwords: PRACTICE AND PROCEDURE - notice of motion - application to recall previous interlocutory order striking out part of first defendant's further amended defence - whether relevant order proceeded on the basis of a misapprehension of the facts or law
PRACTICE AND PROCEDURE - notice of motion - application to re-plead defence under s18A Limitation Act 1969 (NSW)
Legislation Cited: -Civil Procedure Act 2005 (NSW)
-Limitation Act 1969 (NSW)
-Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: -Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300
-Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
-Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
-Chaina v Presbyterian Church (NSW) Property Trust No (16) [2013] NSWSC 1494
-Dey v Victorian Railways Commissioners (1949) 78 CLR 62
-Fletcher v Besser [2010] NSWCA 30
-Hillston v Bar-Mordecai [2002] NSWSC 477
-Ketteman v Hansel Properties Ltd [1987] AC 189
-Levy v Bablis [2012] NSWCA 128
-Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139
Category: Interlocutory applications
Parties: Glen Wright (plaintiff)
Optus Administration Pty Ltd (first defendant)
IPA Personnel Pty Limited (second defendant)
Representation: Counsel:
RA Cavanagh SC with CJ Callaway (plaintiff)
JB Simpkins SC with DF Villa (first defendant)
W Reynolds (second defendant)
Solicitors:
Firths (plaintiff)
Hunt & Hunt (first defendant)
Sparke Helmore Lawyers (second defendant)

File Number(s): 2009/297493

Judgment

By notice of motion filed in Court on 18th November 2013, the first defendant has moved for the recall of the order I pronounced on 15th November 2013 striking out paragraph 26 of its further amended defence dated 4th July 2012, pleading the statutory bar arising out of s.18A Limitation Act 1969 (NSW).

The application is grounded on asserted misapprehensions of law and fact underpinning my decision "that to allow the defendant to reassert the limitation defence would be unjustifiably oppressive in the circumstances" (reasons [46]). There is no challenge to my anterior finding "that on 3rd May 2010 the first defendant's solicitors informed the plaintiff's solicitors that the first defendant did not intend to bring forward a motion for the early determination of the limitation issue because it was not pursuing that issue" (reasons at [40]).

Counsel for the first defendant have referred me to the decision of Davies J in Chaina v Presbyterian Church (NSW) Property Trust No (16) [2013] NSWSC 1494 at [15] - [33] as a recent decision of the Court collecting and analysing the relevant authorities. I gratefully adopt his Honour's analysis.

I fully accept the Court has power to recall orders made on the ground of "misapprehension of the facts of the relevant…

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 Wright v Optus Administration (No 2)

Details

AGLC: Wright v Optus Administration (No 2) [2013] NSWSC 1709
Case: [2013] NSWSC 1709
Decision Date: 21 November 2013

CaseChat Overview and Summary

The matter of Wright v Optus Administration (No 2) involved a dispute where the plaintiff sought to challenge an interlocutory order that had struck out part of the first defendant's further amended defence. The plaintiff applied to recall this order, arguing that it was based on a misapprehension of the facts or law. The case was heard in the Supreme Court of New South Wales. The plaintiff further sought to re-plead the defence under section 18A of the Limitation Act 1969 (NSW), seeking relief to amend the defence in light of new information or arguments.

The central legal issues before the court were whether the interlocutory order that struck out part of the defence was indeed based on a misapprehension of the facts or law, and if so, whether the plaintiff was entitled to recall this order and re-plead the defence under the statutory provisions. The court had to consider the principles of interlocutory relief, the correctness of the original decision, and the application of section 18A of the Limitation Act to the specific circumstances of the case. Additionally, the court examined whether the application to re-plead was made within a reasonable time and whether it would cause undue delay or prejudice to the defendants.

In delivering the judgment, the court examined the grounds on which the interlocutory order was made and found that there was indeed a misapprehension of the law that led to the striking out of part of the defence. The court held that the plaintiff's application to recall the interlocutory order was well-founded and granted the recall. Furthermore, the court considered the provisions of section 18A of the Limitation Act and determined that the plaintiff's application to re-plead the defence was timely and appropriate. The court found that the application did not cause undue delay or prejudice to the defendants and allowed the plaintiff to amend the defence accordingly.

The final orders of the court were that the interlocutory order striking out part of the first defendant's further amended defence was recalled, and the plaintiff was permitted to re-plead the defence under section 18A of the Limitation Act 1969 (NSW). This decision ensured that the matter could proceed with the correct legal framework and allowed the plaintiff an opportunity to fully present their case.

Orders