Grimson v O'Donnell & Ors [1995] FCA 795

Grimson v O'Donnell & Ors [1995] FCA 795

Although the evidence strongly indicated that Mr O'Donnell was not acting for Enima Pty Limited and the applicant would likely fail at trial on the present material, the Court could not confidently conclude that there was no chance of success. Discovery had not yet occurred and the applicant's affidavit had been prepared while he was acting in person and might not fully present his case. The application to dismiss the claim against Enima Pty Limited was therefore dismissed.

Jurisdiction
Australia
Judgment Date
31 August 1995
Procedural Posture
Notice of Motion Seeking an Order That the Third Respondent Cease to Be a Party or Alternatively That the Proceeding Be Dismissed / Interlocutory Application; Extempore Reasons for Judgment
Outcome
The respondents' application in relation to Enima Pty Limited was dismissed, with costs of the notice of motion in connection with that respondent to be costs in the proceeding generally, and directions made for trial preparation.
Legal Topics
['summary Dismissal' 'removal of Party' 'agency' 'affidavit Evidence' 'separate Trial of Damages and Liability' 'costs']
['civil Procedure'] ['summary Dismissal' 'removal of Party' 'agency' 'affidavit Evidence' 'separate Trial of Damages and Liability' 'costs']

Case Brief

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Procedural Posture

Notice of Motion Seeking an Order That the Third Respondent Cease to Be a Party or Alternatively That the Proceeding Be Dismissed / Interlocutory Application; Extempore Reasons for Judgment

Legal Issues

  1. 1 ['Whether the proceeding against Enima Pty Limited should be dismissed or Enima Pty Limited should cease to be a party.' 'Whether the claim against Enima Pty Limited was so obviously untenable that it could not possibly succeed or was manifestly groundless.' "Whether representations allegedly made by Mr O'Donnell were made on behalf of Enima Pty Limited."]

Ratio Decidendi

Although the evidence strongly indicated that Mr O'Donnell was not acting for Enima Pty Limited and the applicant would likely fail at trial on the present material, the Court could not confidently conclude that there was no chance of success. Discovery had not yet occurred and the applicant's affidavit had been prepared while he was acting in person and might not fully present his case. The application to dismiss the claim against Enima Pty Limited was therefore dismissed.

Court Disposition

The respondents' application in relation to Enima Pty Limited was dismissed, with costs of the notice of motion in connection with that respondent to be costs in the proceeding generally, and directions made for trial preparation.

Orders

  • ['In regard to the notice of motion, the application of the respondents in relation to Enima Pty Limited is dismissed.' 'The costs of the notice of motion in connection with that respondent are costs in the proceeding generally.' 'The issue of damages is to be tried separately from the issue of liability and after...