Norman v Woods [2016] NSWSC 257

Norman v Woods [2016] NSWSC 257

The Court was not persuaded that it was appropriate to make the order sought by the plaintiffs at this stage because the second defendant's communications and medical material strongly suggested possible legal incapacity, which should be addressed by formal evidence before further steps are taken. The Court also considered it open to require the plaintiffs to address costs proportionality, but because that issue had not been raised with them, they should first have an opportunity to be heard.

Jurisdiction
Australia
Judgment Date
18 March 2016
Procedural Posture
Defamation Proceedings / Application by Plaintiffs for an Order That the Second Defendant File a Defence Within 28 Days, Determined on the Papers
Outcome
Plaintiffs' requested order was not made at this stage; directions were made for evidence on the second defendant's capacity and, subject to the plaintiffs' right to be heard, costs proportionality.
Legal Topics
['absent Defendant' 'legal Incapacity' 'tutor' 'substituted Service' 'proportionality of Legal Costs' 'overriding Purpose' 'default Judgment']
['practice and Procedure' 'defamation'] ['absent Defendant' 'legal Incapacity' 'tutor' 'substituted Service' 'proportionality of Legal Costs' 'overriding Purpose' 'default Judgment']

Case Brief

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Procedural Posture

Defamation Proceedings / Application by Plaintiffs for an Order That the Second Defendant File a Defence Within 28 Days, Determined on the Papers

Legal Issues

  1. 1 ['Whether to order the second defendant to file a defence within 28 days failing which default judgment may be entered against her' 'Whether informal medical material and communications suggested the second defendant may be under legal incapacity requiring determination before further steps are taken' 'Whether the Court could require the plaintiffs to address on affidavit the proportionality between likely legal costs and the interest at stake']

Ratio Decidendi

The Court was not persuaded that it was appropriate to make the order sought by the plaintiffs at this stage because the second defendant's communications and medical material strongly suggested possible legal incapacity, which should be addressed by formal evidence before further steps are taken. The Court also considered it open to require the plaintiffs to address costs proportionality, but because that issue had not been raised with them, they should first have an opportunity to be heard.

Court Disposition

Plaintiffs' requested order was not made at this stage; directions were made for evidence on the second defendant's capacity and, subject to the plaintiffs' right to be heard, costs proportionality.

Orders

  • ['I direct the second defendant within 28 days to file and serve any affidavit or verified medical report upon which she may wish to rely addressing her current and likely future capacity, in light of the medical condition addressed in the two medical certificates, to participate in the proceedings.' "Subject to...