Duncan-Strelec v Tate [2009] NSWSC 1252

Duncan-Strelec v Tate [2009] NSWSC 1252

Although the plaintiffs' repeated defaults caused unfair prejudice and were inadequately explained, summary dismissal of the proceedings against the first and second defendants was not in accordance with the dictates of justice because the limitation period had not expired, the third defendant remained in the proceedings, and dismissal could produce fresh proceedings, further delay, additional costs and procedural complexity. Leave was allowed in relation to the first plaintiff's lay affidavit and the plaintiffs were permitted to reopen to tender the second plaintiff's affidavit, but leave to adduce expert evidence was refused because directions had not been sought, attempts to obtain...

Jurisdiction
Australia
Judgment Date
20 November 2009
Procedural Posture
Procedural and Other Rulings / Plaintiffs' Application for Leave to Rely on Lay and Expert Evidence, and First and Second Defendants' Application for Summary Dismissal Under S 61 of the Civil Procedure Act 2005 (nsw)
Outcome
The first and second defendants' application for summary dismissal was dismissed; the plaintiffs' application for leave to adduce expert evidence was dismissed; the plaintiffs were given leave to reopen to tender the second plaintiff's affidavit, with further consideration of leave to rely on it adjourned.
Legal Topics
['service of Affidavits' 'expert Evidence Directions' 'summary Dismissal for Want of Prosecution' 'case Management' 'costs Arising From Procedural Defaults']
['civil Procedure' 'evidence'] ['service of Affidavits' 'expert Evidence Directions' 'summary Dismissal for Want of Prosecution' 'case Management' 'costs Arising From Procedural Defaults']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Plaintiffs' Application for Leave to Rely on Lay and Expert Evidence, and First and Second Defendants' Application for Summary Dismissal Under S 61 of the Civil Procedure Act 2005 (nsw)

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave to rely on lay evidence served after repeated defaults in complying with orders for service of affidavits.' 'Whether the plaintiffs should be granted leave to adduce expert evidence despite not seeking directions and not taking adequate steps to obtain it.' 'Whether the proceedings against the first and second defendants should be dismissed under s 61 of the Civil Procedure Act 2005 (NSW) for failure to comply with directions.' 'Whether summary dismissal would accord with the dictates of justice where the limitation period had not expired and fresh proceedings could cause further delay and costs.']

Ratio Decidendi

Although the plaintiffs' repeated defaults caused unfair prejudice and were inadequately explained, summary dismissal of the proceedings against the first and second defendants was not in accordance with the dictates of justice because the limitation period had not expired, the third defendant remained in the proceedings, and dismissal could produce fresh proceedings, further delay, additional costs and procedural complexity. Leave was allowed in relation to the first plaintiff's lay affidavit and the plaintiffs were permitted to reopen to tender the second plaintiff's affidavit, but leave to adduce expert evidence was refused because directions had not been sought, attempts to obtain...

Court Disposition

The first and second defendants' application for summary dismissal was dismissed; the plaintiffs' application for leave to adduce expert evidence was dismissed; the plaintiffs were given leave to reopen to tender the second plaintiff's affidavit, with further consideration of leave to rely on it adjourned.

Orders

  • ["I dismiss the first and second defendants' notice of motion that the proceedings be summarily dismissed;" 'I give leave to the plaintiffs to reopen to tender the affidavit of the second plaintiff upon which they seek leave to rely;' "I dismiss the plaintiffs' application for leave to adduce expert evidence;" "I...