Owen v Skarps Constructions Pty Ltd [2022] NSWSC 1225

Owen v Skarps Constructions Pty Ltd [2022] NSWSC 1225

Because the first defendant had deliberately failed to comply with case-management orders made to clarify or properly plead its defence, apparently because its insurer did not wish to comply, and because solicitors' duties to the Court require compliance with such orders and assistance with the overriding purpose, the Court granted the plaintiff leave to file a notice of motion to strike out the defence and made further directions. The Court also directed that all three rehabilitation experts participate in the conclave because they were of the same discipline and their reports overlapped.

Jurisdiction
Australia
Judgment Date
18 August 2022
Procedural Posture
Common Law Proceeding; Procedural Rulings / Final Status Conference Before Listed Hearing; Case Management Orders and Leave to File Motion to Strike Out Defence
Outcome
Further case-management orders made; plaintiff granted leave to file a notice of motion to strike out the defence.
Legal Topics
['case Management Orders' 'non Compliance With Court Orders' "solicitors' Duties as Officers of the Court" 'overriding Purpose' 'expert Conclave' 'strike Out of Defence']
['civil Procedure' 'occupations' 'legal Practitioners'] ['case Management Orders' 'non Compliance With Court Orders' "solicitors' Duties as Officers of the Court" 'overriding Purpose' 'expert Conclave' 'strike Out of Defence']

Case Brief

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Procedural Posture

Common Law Proceeding; Procedural Rulings / Final Status Conference Before Listed Hearing; Case Management Orders and Leave to File Motion to Strike Out Defence

Legal Issues

  1. 1 ["Whether the first defendant's non-compliance with case-management orders requiring it to amend its defence or explain its position should have consequences, including a possible motion to strike out the defence." "Whether the plaintiff's treating rehabilitation specialist should participate in the expert conclave with the retained rehabilitation specialists." 'Whether solicitors may fail to comply with Court orders because an insurer client does not wish to undertake the ordered task.']

Ratio Decidendi

Because the first defendant had deliberately failed to comply with case-management orders made to clarify or properly plead its defence, apparently because its insurer did not wish to comply, and because solicitors' duties to the Court require compliance with such orders and assistance with the overriding purpose, the Court granted the plaintiff leave to file a notice of motion to strike out the defence and made further directions. The Court also directed that all three rehabilitation experts participate in the conclave because they were of the same discipline and their reports overlapped.

Court Disposition

Further case-management orders made; plaintiff granted leave to file a notice of motion to strike out the defence.

Orders

  • ['The time for service of refresher evidence by the parties is extended to 20 September 2022.' 'The time for parties to agree on questions to be put to expert witness for expert conclave is extended to 31 August 2022.' 'The time for expert conclaves to be conducted and reports to be finalised is extended to 30...