Markisic v Department of Community Services NSW & Ors [2006] NSWCA 106

Markisic v Department of Community Services NSW & Ors [2006] NSWCA 106

The applications had to be adjourned because the claims against the unjoined new opponents were entangled with the claims against the other opponents, making it impracticable to proceed by excising them. Given the adjournment, the claimant could put forward a revised statement of claim, but only with affidavit evidence showing facts probably capable of proof that would support the allegations. The claimant was responsible for the adjournment and had to pay the costs thrown away; those costs were properly assessed in gross sums of $3,000 for each of the second, third, fourth and fifth opponents. Because payment of the full $12,000 forthwith would stifle the impecunious claimant's...

Jurisdiction
Australia
Judgment Date
01 May 2006
Procedural Posture
Applications for Leave to Appeal and Leave to Cross Appeal / Court of Appeal Hearing of Applications; Applications Adjourned for Directions
Outcome
Applications adjourned; leave granted to amend the applications by joining the sixth, seventh and eighth opponents; directions and costs orders made.
Legal Topics
['leave to Appeal' 'amendment of Pleadings' 'joinder of Parties' 'adjournment' 'costs Thrown Away' 'stay Pending Payment of Costs']
['civil Procedure' 'appellate Procedure' 'costs'] ['leave to Appeal' 'amendment of Pleadings' 'joinder of Parties' 'adjournment' 'costs Thrown Away' 'stay Pending Payment of Costs']

Case Brief

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Procedural Posture

Applications for Leave to Appeal and Leave to Cross Appeal / Court of Appeal Hearing of Applications; Applications Adjourned for Directions

Legal Issues

  1. 1 ['Whether the applications should be adjourned because the claimant had not joined or served the new opponents as parties to the application for leave to appeal.' 'Whether the claimant should be permitted to put forward a revised statement of claim and on what terms.' 'Whether the costs thrown away by the adjournment should be assessed in a gross sum, paid forthwith, and whether the proceedings should be stayed pending payment.']

Ratio Decidendi

The applications had to be adjourned because the claims against the unjoined new opponents were entangled with the claims against the other opponents, making it impracticable to proceed by excising them. Given the adjournment, the claimant could put forward a revised statement of claim, but only with affidavit evidence showing facts probably capable of proof that would support the allegations. The claimant was responsible for the adjournment and had to pay the costs thrown away; those costs were properly assessed in gross sums of $3,000 for each of the second, third, fourth and fifth opponents. Because payment of the full $12,000 forthwith would stifle the impecunious claimant's...

Court Disposition

Applications adjourned; leave granted to amend the applications by joining the sixth, seventh and eighth opponents; directions and costs orders made.

Orders

  • ['Adjourn the applications to the date for directions in order 7.' 'Grant leave to amend the applications by the joinder of the sixth, seventh and eighth opponents.' 'Direct that the claimant serve on the opponents within four weeks from today his revised statement of claim, accompanied by affidavit evidence showing...