Skelton v Foggo [2021] NSWSC 1228

Skelton v Foggo [2021] NSWSC 1228

The statement of claim does not disclose a reasonable cause of action known to Australian law, is incoherent and lacks proper particularisation, and any potential cause of action is statute-barred given the significant passage of time (over 30 years) since accrual and absence of evidence of disability justifying extension. The court will not permit the plaintiff to replead due to the age of the case and repeated prior attempts to seek redress.

Parties
Plaintiff: Brett Skelton; First Defendant: Robert Foggo; Second Defendant: Alistair Henskens; Third Defendant: Michael Evers; Fourth Defendant: Carl Terpstra; Fifth Defendant: Nicholas Coren; Sixth Defendant: Robert Harris
Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Summary Dismissal/strike Out Motion in Civil Claim / Interlocutory Application; Summary Determination
Outcome
Plaintiff's statement of claim against the first defendant dismissed; costs to first defendant; matter listed for directions hearing.
Legal Topics
Summary Dismissal, Strike Out Applications, Pleadings, Limitation Periods, Abuse of Process
Civil Procedure Summary Dismissal Strike Out Applications Pleadings Limitation Periods Abuse of Process

Case Brief

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Parties

Brett Skelton

Plaintiff

Robert Foggo

First Defendant

Alistair Henskens

Second Defendant

Michael Evers

Third Defendant

Carl Terpstra

Fourth Defendant

Nicholas Coren

Fifth Defendant

Robert Harris

Sixth Defendant

Procedural Posture

Summary Dismissal/strike Out Motion in Civil Claim / Interlocutory Application; Summary Determination

Legal Issues

  1. 1 Whether the statement of claim discloses a reasonable cause of action
  2. 2 Whether the pleading is an abuse of process or otherwise defective
  3. 3 Whether the claim is statute-barred by Limitation Act 1969 (NSW)

Ratio Decidendi

The statement of claim does not disclose a reasonable cause of action known to Australian law, is incoherent and lacks proper particularisation, and any potential cause of action is statute-barred given the significant passage of time (over 30 years) since accrual and absence of evidence of disability justifying extension. The court will not permit the plaintiff to replead due to the age of the case and repeated prior attempts to seek redress.

Court Disposition

Plaintiff's statement of claim against the first defendant dismissed; costs to first defendant; matter listed for directions hearing.

Orders

  • The plaintiff's statement of claim filed 17 March 2021 is dismissed as against the first defendant.
  • The plaintiff is to pay the first defendant's costs of the proceedings on an ordinary basis.