Ferdinand Nemeth & Anor v Prynew Pty Limited and Ors [2005] NSWSC 1296

Ferdinand Nemeth & Anor v Prynew Pty Limited and Ors [2005] NSWSC 1296

The Civil Liability Act 2002 (NSW) does not make failure to identify concurrent wrongdoers a bar to relying on proportionate liability, but s 61 of the Civil Procedure Act 2005 (NSW), read with the case management objects in Part 6, empowers the Court to permit interrogatories seeking facts relevant to whether a defendant has reasonable grounds to believe that a particular person may be a concurrent wrongdoer. Granting interrogatories in this context is consistent with efficient case management and avoids ambush, surprise and aborted hearings while not preventing reliance on later-emerging information.

Jurisdiction
Australia
Judgment Date
02 December 2005
Procedural Posture
Civil Proceedings Claiming Damages Arising From Subsidence of Premises, Including Claims in Negligence, Breach of Statutory Duty and Nuisance / Interlocutory Notices of Motion and Applications Concerning Discovery From Qbe, Leave to File Amended Defences, and Leave to Administer Interrogatories
Outcome
Interrogatories to be allowed upon short minutes being brought in; leave to amend defences granted; discovery application against QBE stood over.
Legal Topics
['case Management' 'interrogatories' 'particulars' 'concurrent Wrongdoers' 'apportionable Claims' 'discovery' 'amended Defences']
['civil Procedure' 'tort Law' 'construction Law' 'proportionate Liability'] ['case Management' 'interrogatories' 'particulars' 'concurrent Wrongdoers' 'apportionable Claims' 'discovery' 'amended Defences']

Case Brief

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Procedural Posture

Civil Proceedings Claiming Damages Arising From Subsidence of Premises, Including Claims in Negligence, Breach of Statutory Duty and Nuisance / Interlocutory Notices of Motion and Applications Concerning Discovery From Qbe, Leave to File Amended Defences, and Leave to Administer Interrogatories

Legal Issues

  1. 1 ['Whether the application for further discovery against QBE should be ordered or stood over pending the reference' 'Whether the first and second defendants should have leave to file an amended defence raising proportionate liability' 'Whether the third defendant should have leave to amend its defence to plead limited proportionate liability without identifying alleged concurrent wrongdoers' 'Whether the Court could use case management powers to permit interrogatories directed to facts giving rise to reasonable grounds to believe a particular person may be a concurrent wrongdoer']

Ratio Decidendi

The Civil Liability Act 2002 (NSW) does not make failure to identify concurrent wrongdoers a bar to relying on proportionate liability, but s 61 of the Civil Procedure Act 2005 (NSW), read with the case management objects in Part 6, empowers the Court to permit interrogatories seeking facts relevant to whether a defendant has reasonable grounds to believe that a particular person may be a concurrent wrongdoer. Granting interrogatories in this context is consistent with efficient case management and avoids ambush, surprise and aborted hearings while not preventing reliance on later-emerging information.

Court Disposition

Interrogatories to be allowed upon short minutes being brought in; leave to amend defences granted; discovery application against QBE stood over.

Orders

  • ['The application for further discovery against QBE was stood over until an appropriate time following the reference, with costs of that notice of motion reserved and liberty to restore.' 'The first and second defendants were granted leave to file and serve the document entitled First and Second Defendants Point of...