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
Category: Principal judgment Parties: Plaintiff: Katie Zimmermann
Defendant: Kim PerkissRepresentation: Counsel:
Solicitors:
Ms M Hall (Plaintiff)
Mr J O’Connor (Defendant)
Brander Smith McKnight Lawyers (Plaintiff)
Fulcrum Legal (Defendant)
File Number(s): 2022/00070757
Judgment
The application before the Court
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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.
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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
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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
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- Case
- [2022] NSWDC 458
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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