Portelli v Tabriska Pty Ltd & 4 Ors [2006] NSWSC 1204

Portelli v Tabriska Pty Ltd & 4 Ors [2006] NSWSC 1204

The claims against the fourth defendant were not suitable for strike out because the plaintiff's success depended on witness evidence and credibility, there was evidence placing Daniel Stephens at the scene of both the inside and outside assaults, and the civil trial involved a different burden of proof from the criminal trial. The plaintiff, first, second and fifth defendants therefore had reasonable causes of action against the fourth defendant. The security for costs application failed because there was no evidence enlivening the jurisdiction under r 42.21(1) of the UCPR.

Jurisdiction
Australia
Judgment Date
22 November 2006
Procedural Posture
Notice of Motion to Strike Out the Statement of Claim and Cross Claims as Against the Fourth Defendant, Alternatively for Security for Costs / Interlocutory Application
Outcome
The fourth defendant's notice of motion filed 26 June 2006 was dismissed; the plaintiff was ordered to file and serve a further amended statement of claim within 14 days; costs were reserved.
Legal Topics
['strike Out' 'summary Dismissal' 'security for Costs' 'assault' 'negligence' 'contribution and Indemnity']
['civil Procedure' 'torts'] ['strike Out' 'summary Dismissal' 'security for Costs' 'assault' 'negligence' 'contribution and Indemnity']

Case Brief

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Procedural Posture

Notice of Motion to Strike Out the Statement of Claim and Cross Claims as Against the Fourth Defendant, Alternatively for Security for Costs / Interlocutory Application

Legal Issues

  1. 1 ["Whether the plaintiff's action against the fourth defendant should be struck out as revealing no sustainable or reasonable cause of action or as having no reasonable prospects of success." "Whether the first and second defendants' amended first cross claim and the fifth defendant's second cross claim against the fourth defendant should be struck out." 'Whether the fourth defendant should be removed as a party to the proceedings.' "Whether the plaintiff, first, second and fifth defendants should provide security for the fourth defendant's costs."]

Ratio Decidendi

The claims against the fourth defendant were not suitable for strike out because the plaintiff's success depended on witness evidence and credibility, there was evidence placing Daniel Stephens at the scene of both the inside and outside assaults, and the civil trial involved a different burden of proof from the criminal trial. The plaintiff, first, second and fifth defendants therefore had reasonable causes of action against the fourth defendant. The security for costs application failed because there was no evidence enlivening the jurisdiction under r 42.21(1) of the UCPR.

Court Disposition

The fourth defendant's notice of motion filed 26 June 2006 was dismissed; the plaintiff was ordered to file and serve a further amended statement of claim within 14 days; costs were reserved.

Orders

  • ["The fourth defendant's notice of motion filed 26 June 2006 is dismissed." 'The plaintiff is to file and serve a further amended statement of claim within 14 days.' 'Costs are reserved.']