Collendina & Ors v Murray-Darling Basin Commission & Ors [2003] NSWSC 1081

Collendina & Ors v Murray-Darling Basin Commission & Ors [2003] NSWSC 1081

The defendants failed to discharge the onus required for summary dismissal. The plaintiffs' claim was not shown to be hopeless or doomed to failure because the defendants had control and relevant statutory powers, water was released from the Dam and the property was flooded, the plaintiffs might be able to lead factual and expert evidence capable of supporting an arguable case, relevant information might largely be within the defendants' knowledge, and interlocutory processes had not been exhausted.

Jurisdiction
Australia
Judgment Date
24 November 2003
Procedural Posture
Damages Claim in Negligence Arising From Releases of Water From the Hume Dam / Hearing of the First to Ninth Defendants' Notice of Motion for Summary Dismissal Under Supreme Court Rules 1970, Pt 13 R 5
Outcome
The defendants' Notice of Motion is dismissed.
Legal Topics
['summary Dismissal' 'abuse of Process' 'reasonable Prospects Certificate' 'duty to Exercise Statutory Power With Reasonable Care' 'discovery and Interrogatories']
['civil Procedure' 'negligence' 'administrative and Statutory Powers'] ['summary Dismissal' 'abuse of Process' 'reasonable Prospects Certificate' 'duty to Exercise Statutory Power With Reasonable Care' 'discovery and Interrogatories']

Case Brief

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Procedural Posture

Damages Claim in Negligence Arising From Releases of Water From the Hume Dam / Hearing of the First to Ninth Defendants' Notice of Motion for Summary Dismissal Under Supreme Court Rules 1970, Pt 13 R 5

Legal Issues

  1. 1 ['Whether the proceedings should be summarily dismissed under Supreme Court Rules 1970, Pt 13 r 5 as an abuse of process.' "Whether the plaintiffs' negligence claim was hopeless or doomed to failure because it was said to be unsupported by evidence beyond bare or unsubstantiated allegation." 'Whether the availability of outstanding interlocutory processes, including discovery and interrogatories, weighed against summary dismissal.']

Ratio Decidendi

The defendants failed to discharge the onus required for summary dismissal. The plaintiffs' claim was not shown to be hopeless or doomed to failure because the defendants had control and relevant statutory powers, water was released from the Dam and the property was flooded, the plaintiffs might be able to lead factual and expert evidence capable of supporting an arguable case, relevant information might largely be within the defendants' knowledge, and interlocutory processes had not been exhausted.

Court Disposition

The defendants' Notice of Motion is dismissed.

Orders

  • ["The defendants' Notice of Motion is dismissed." 'The defendants are to pay the costs of the Notice of Motion.' 'The Exhibits may be returned.']