Moore v C S Brooks Inc. [2005] NSWCA 141

Moore v C S Brooks Inc. [2005] NSWCA 141

Leave to appeal was refused because, even if the primary judge had blurred the Pt 31 r 2 and Pt 15 r 26 tests, the refusal to order separate determination was correct: discovery had not occurred, witness statements had not been exchanged, relevant facts were not yet known, and it would be premature and wrong to decide the issues on assumed pleaded facts that might not be the facts found at trial.

Jurisdiction
Australia
Judgment Date
28 April 2005
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From a Decision Declining to Order Separate Determination of Issues Under Pt 31 of the Supreme Court Rules
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['separate Determination of Issues' 'leave to Appeal' 'employees Liability Act 1991' 'serious and Wilful Misconduct' 'misleading and Deceptive Conduct']
['practice and Procedure' 'employment Liability' 'contract' 'tort' 'consumer Protection'] ['separate Determination of Issues' 'leave to Appeal' 'employees Liability Act 1991' 'serious and Wilful Misconduct' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From a Decision Declining to Order Separate Determination of Issues Under Pt 31 of the Supreme Court Rules

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from the refusal to order separate determination of issues under Pt 31 r 2 of the Supreme Court Rules.' 'Whether the first cross-claim or any part of it is a claim for indemnity or contribution within the meaning of s 3 of the Employees Liability Act 1991 (NSW).' 'Whether the conduct alleged in the first cross-claim amounts to serious and wilful misconduct within the meaning of the Employees Liability Act 1991 (NSW).' "Whether the conduct alleged in the first cross-claim occurred in the course of, or arose out of, Mr Moore's employment within the meaning of the Employees Liability Act 1991 (NSW)."]

Ratio Decidendi

Leave to appeal was refused because, even if the primary judge had blurred the Pt 31 r 2 and Pt 15 r 26 tests, the refusal to order separate determination was correct: discovery had not occurred, witness statements had not been exchanged, relevant facts were not yet known, and it would be premature and wrong to decide the issues on assumed pleaded facts that might not be the facts found at trial.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Application for leave to appeal be dismissed with costs.']