Zimmerman v Perkiss (No.2) - [2022] NSWDC 458

District Court

New South Wales

Medium Neutral Citation: Zimmerman v Perkiss (No.2) [2022] NSWDC 458
Hearing dates: 7 October 2022
Date of orders: 7 October 2022
Decision date: 07 October 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Plaintiff’s oral application to stay the entry of the orders made in Zimmerman v Perkiss [2022] NSWDC 448 on JusticeLink refused with costs.
(2) The orders in this application, as well as in Zimmerman v Perkiss [2022] NSWDC 448, are to be entered on JusticeLink forthwith.

Catchwords:
PROCEDURE – entry of judgment and orders onto JusticeLink – an application to stay entry of orders to enable the plaintiff to seek leave to amend the statement of claim – application refused.

Legislation Cited:
Defamation Act 2005 (NSW) s 23
Uniform Civil Procedure Rules 2005 (NSW) rr 19.1 and 36.11

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245)
Gregory's Transport Pty Ltd v Ray's Haulage Pty Ltd [2008] NSWCA 333
Latham v North Sydney Municipal Council & Anor [2004] NSWSC 93
Mills v Futhem Pty Ltd (2011) 81 NSWLR 538; [2011] NSWCA 252
Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248
Tjiong v Tjiong: 2019/278508 [2021] NSWSC 1389
UBS AG v Tyne (2018) 265 CLR 77
Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41
Zimmerman v Perkiss [2022] NSWDC 448

Category: Principal judgment
Parties: Plaintiff: Katie Zimmermann
Defendant: Kim Perkiss
Representation:
Counsel:
Ms M Hall (Plaintiff)
Mr J O’Connor (Defendant)
Solicitors:
Brander Smith McKnight Lawyers (Plaintiff)
Fulcrum Legal (Defendant)

File Number(s): 2022/00070757

Judgment

The application before the Court

After I read out the orders in Zimmerman v Perkiss [2022] NSWDC 448 in open court this morning, Ms Hall, for the plaintiff, told me that she had an oral application to make. That application was for a stay of entry of the judgment orders for seven days, so that she could seek instructions from her client to bring an application to amend the statement of claim. She was unsure whether it was too late to make such an application, in that I had just read out the orders in open court.
I set out the relevant rules for the entry of orders on JusticeLink as well as a brief overview of the very small number of decisions in the Supreme Court and Federal Court dealing with applications of such an exceptional and unusual nature.

JusticeLink and the entry of court orders

JusticeLink came into operation in 2010, five years after the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) were enacted. The system for electronic entry on JusticeLink identified as necessary by Young JA for busy court lists is set out in Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245); see also

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.

Keep reading for free

Create a free CaseChat account to read Zimmerman v Perkiss (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWDC 458
Decision Date: 07 October 2022

CaseChat Overview and Summary

Zimmerman v Perkiss (No.2) involved the plaintiff seeking to halt the entry of specific orders onto JusticeLink following a previous judgment in Zimmerman v Perkiss [2022] NSWDC 448. The primary issue before the court was whether the plaintiff should be granted leave to amend the statement of claim, which would result in a stay of the entry of the orders made in the earlier judgment. This application was made to ensure the plaintiff could pursue further legal avenues without being constrained by the immediate enforcement of the existing orders.

The legal question at hand was whether the court should allow a delay in the enforcement of the orders to permit the plaintiff to seek leave to amend the statement of claim. The court considered the principles of procedural fairness and the impact of such a stay on the finality and enforceability of judgments. It also examined the circumstances under which an amendment to the pleadings might be justified and whether the plaintiff's proposed amendments had merit.

In its decision, the court ruled that the plaintiff's application to stay the entry of the orders was refused. The reasoning provided by the court included the lack of demonstrated merit in the plaintiff's proposed amendments and the importance of maintaining the finality of judgments. The court emphasised that the plaintiff had not provided sufficient grounds to justify a stay, and such an application should not unduly delay the enforcement of valid orders. Consequently, the court mandated that the orders from both the previous judgment and the current application be entered on JusticeLink without further delay.

Orders

Orders of the court

Order:

(1) Plaintiff’s oral application to stay the entry of the orders made in Zimmerman v Perkiss [2022] NSWDC 448 on JusticeLink refused with costs.

(2) The orders in this application, as well as in Zimmerman v Perkiss [2022] NSWDC 448, are to be entered on JusticeLink forthwith.

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:	Zimmerman v Perkiss (No.2) [2022] NSWDC 458
Hearing dates:	7 October 2022
Date of orders:	7 October 2022
Decision date:	07 October 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Plaintiff’s oral application to stay the entry of the orders made in Zimmerman v Perkiss [2022] NSWDC 448 on JusticeLink refused with costs. (2) The orders in this application, as well as in Zimmerman v Perkiss [2022] NSWDC 448, are to be entered on JusticeLink forthwith.
Catchwords:	PROCEDURE – entry of judgment and orders onto JusticeLink – an application to stay entry of orders to enable the plaintiff to seek leave to amend the statement of claim – application refused.
Legislation Cited:	Defamation Act 2005 (NSW) s 23 Uniform Civil Procedure Rules 2005 (NSW) rr 19.1 and 36.11
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245) Gregory's Transport Pty Ltd v Ray's Haulage Pty Ltd [2008] NSWCA 333 Latham v North Sydney Municipal Council & Anor [2004] NSWSC 93 Mills v Futhem Pty Ltd (2011) 81 NSWLR 538; [2011] NSWCA 252 Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 Tjiong v Tjiong: 2019/278508 [2021] NSWSC 1389 UBS AG v Tyne (2018) 265 CLR 77 Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41 Zimmerman v Perkiss [2022] NSWDC 448
Category:	Principal judgment
Parties:	Plaintiff: Katie Zimmermann Defendant: Kim Perkiss
Representation:	Counsel: Ms M Hall (Plaintiff) Mr J O’Connor (Defendant) Solicitors: Brander Smith McKnight Lawyers (Plaintiff) Fulcrum Legal (Defendant)
File Number(s):	2022/00070757