Collendina Pty Ltd & 4 Ors v Murray Darling Basin Commission & 8 Ors [2006] NSWSC 776

Collendina Pty Ltd & 4 Ors v Murray Darling Basin Commission & 8 Ors [2006] NSWSC 776

The further amended statement of claim pleaded the alleged negligent acts with particulars sufficient for r 15.5 of the Uniform Civil Procedure Rules 2005. Swain v Waverley Municipal Council concerned the burden of proof and evidence required to establish a reasonably practicable alternative course of conduct; it did not require the plaintiffs to plead that alternative in the statement of claim. The further particulars sought about dates, quantities and residual damage would be matters for expert evidence after the defence was filed. The statement of claim should not be struck out and the motion should be dismissed.

Jurisdiction
Australia
Judgment Date
04 August 2006
Procedural Posture
Common Law Negligence Proceedings Concerning Releases of Water From the Hume Dam / Defendants' Further Amended Notice of Motion for Particulars, Strike Out or Dismissal Before Defence
Outcome
The defendants' amended notice of motion filed 20 July 2006 was dismissed, and the defendants were ordered to file and serve a defence and pay the plaintiffs' costs.
Legal Topics
['strike Out Application' 'particulars' 'reasonable Cause of Action' 'abuse of Process' 'pleading Negligence' 'statutory Power to Release Water From Hume Dam']
['civil Procedure' 'negligence' 'water Management'] ['strike Out Application' 'particulars' 'reasonable Cause of Action' 'abuse of Process' 'pleading Negligence' 'statutory Power to Release Water From Hume Dam']

Case Brief

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Procedural Posture

Common Law Negligence Proceedings Concerning Releases of Water From the Hume Dam / Defendants' Further Amended Notice of Motion for Particulars, Strike Out or Dismissal Before Defence

Legal Issues

  1. 1 ['Whether the further amended statement of claim should be struck out as disclosing no reasonable cause of action or as an abuse of process.' 'Whether the plaintiffs were required to plead or particularise a reasonably practicable alternative course of water releases that would have avoided or reduced their alleged loss.' 'Whether the defendants should be ordered to obtain further particulars before filing a defence.']

Ratio Decidendi

The further amended statement of claim pleaded the alleged negligent acts with particulars sufficient for r 15.5 of the Uniform Civil Procedure Rules 2005. Swain v Waverley Municipal Council concerned the burden of proof and evidence required to establish a reasonably practicable alternative course of conduct; it did not require the plaintiffs to plead that alternative in the statement of claim. The further particulars sought about dates, quantities and residual damage would be matters for expert evidence after the defence was filed. The statement of claim should not be struck out and the motion should be dismissed.

Court Disposition

The defendants' amended notice of motion filed 20 July 2006 was dismissed, and the defendants were ordered to file and serve a defence and pay the plaintiffs' costs.

Orders

  • ['The amended notice of motion filed 20 July 2006 is dismissed.' 'The defendants are to file and serve a defence within 14 days.' 'A status conference is to be allocated. Court to notify parties.' "The defendants are to pay the plaintiffs' costs as agreed or assessed."]