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Young v Cooke

Young v Cooke

Case [2016] NSWSC 408 13 April 2016

Jurisdiction

Summary Judgment

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Young v Cooke [2016] NSWSC 408
Hearing dates: 30 March 2016
Date of orders: 13 April 2016
Decision date: 13 April 2016
Before: Garling J
Decision:
(1)   Notice of Motion of the plaintiff dated 31 October 2015 be dismissed.
(2) Order, pursuant to r 14.28 of the Uniform Civil Procedure Rules, that the Summons filed by the plaintiff on 16 July 2015 be struck out.
(3)   Dismiss the defendants’ claim for summary judgment as set out in Order 1 of the defendants’ Notice of Motion dated 27 August 2015.
(4)   Stand over the balance of the defendants’ Motion of 27 August 2015.
(5)   Order that, in the event that the plaintiff seeks leave to file an Amended Summons, then he must do so by way of a notice of motion filed on or before 23 May 2016, accompanied by such affidavits in support as the plaintiff wishes to rely upon.
(6)   Order that such notice of motion and accompanying affidavits in support be served no later than 30 May 2016.
(7)   Order that the plaintiff be granted leave to make such motion returnable before the Common Law Registrar at 9am on 6 June 2016.
(8)   Order that the plaintiff pay the defendants’ costs of the proceedings on both Notices of Motion.
(9) Pursuant to the provisions of r 7.36 of the UCPR, order that the plaintiff be referred to the Registrar for referral to a member of the Pro Bono Panel for assistance with respect to the drafting or settling of a proposed Amended Summons.

Catchwords:
PRACTICE AND PROCEDURE – civil – notice of motion seeking leave to file amended summons – where summons and amended summons seek to challenge a decision of the Local Court – where both summonses are not in proper form and fail to articulate the basis upon which relief is sought – whether amended summons should be allowed - whether summons should be struck out
PRACTICE AND PROCEDURE – civil – notice of motion seeking summary dismissal of proceedings – where the Local Court Magistrate made findings of fact based on evidence before the Local Court – where the plaintiff seeks to challenge the Magistrate’s decision in the Supreme Court – whether the outcome of the proceedings is sufficiently certain to warrant summary dismissal
Legislation Cited: Civil Liability Act 2002
Companion Animals Act 1998
Local Court Act 2007
Supreme Court Act 1970
Uniform Civil Procedure Rules
Cases Cited: ASIC v Farley [2001] NSWSC 326; (2001) 51 NSWLR 494
Australian Gaslight Co v Valuer-General (1940) 4 SR (NSW) 126
Barr v Broomby [2014] NSWSC 1852
Curtis v Charles Darwin University [2014] NSWSC 1032
International Fashion Group Pty Ltd v Jonco Imports Pty Ltd [2014] NSWSC 60
Lee v Knapik [2015] NSWSC 334
Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers [2013] NSWSC 111
Pi v Zhou [2016] NSWCA 24
RL & D Investments Pty Ltd v Bisby (2002) NSWSC 1082
Texts Cited: Not Applicable
Category:

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 Young v Cooke

Details

AGLC: Young v Cooke [2016] NSWSC 408
Case: [2016] NSWSC 408
Decision Date: 13 April 2016

CaseChat Overview and Summary

The matter before the Court was a dispute between the plaintiff, Young, and the defendant, Cooke. Young sought to challenge a decision of the Local Court through a summons and subsequently an amended summons. Both the summons and the amended summons were not in proper form and failed to adequately articulate the basis upon which relief was sought. Cooke, the defendant, responded by seeking the summary dismissal of Young's proceedings on the grounds that the outcome was sufficiently certain to warrant such a dismissal. The Court was required to determine whether Young's amended summons should be allowed, whether the original summons should be struck out, and whether Cooke's application for summary dismissal should be granted.

The central legal issue before the Court was the propriety of the form and content of Young's summons and amended summons. Specifically, the Court had to consider whether the deficiencies in form and articulation of the basis for relief were so significant that they warranted the striking out of the original summons and the disallowance of the amended summons. Additionally, the Court had to assess the merits of Cooke's application for summary dismissal based on the certainty of the outcome in the proceedings, considering the findings of fact made by the Local Court Magistrate.

In addressing these issues, the Court held that both the summons and the amended summons were not in proper form and failed to sufficiently articulate the basis upon which relief was sought. Consequently, the Court disallowed the amended summons and struck out the original summons. The Court found that the deficiencies in the summons were significant enough to warrant the dismissal of the proceedings. Furthermore, the Court considered Cooke's application for summary dismissal and found that the outcome of the proceedings was not sufficiently certain to warrant such a dismissal. The Court noted that the Local Court Magistrate had made findings of fact based on evidence before the Local Court, and it was not appropriate to summarily dismiss Young's challenge at this stage.

The Court's final orders were that the amended summons be disallowed and the original summons be struck out. The Court denied Cooke's application for summary dismissal, allowing the proceedings to continue in the Supreme Court. This decision underscores the importance of proper form and adequate articulation of the basis for relief in civil proceedings, as well as the cautious approach the Court takes when considering applications for summary dismissal.

Orders