John Calderwood McLEAN v Andrew POWER & Anor [2013] NSWSC 193

John Calderwood McLEAN v Andrew POWER & Anor [2013] NSWSC 193

The proceedings were an abuse of process because, under the guise of allegations about the defendants' conduct, they sought to relitigate the plaintiff's personal injury claim and re-examine findings made in the District Court that the DVD depicted the relevant incident and that the editing of footage and unavailability of the incident report had not prejudiced the plaintiff. Relitigation would be manifestly unfair to the defendants and would bring the administration of justice into disrepute. In any event, the allegations that the defendants knowingly produced a false DVD or withheld evidence were baseless, including because Mr Power had no role in the preparation or conduct of Star...

Jurisdiction
Australia
Judgment Date
15 March 2013
Procedural Posture
Common Law Proceedings Seeking Damages for Personal Injury Against Solicitors Arising From Conduct of a District Court Personal Injury Claim / Motions by Both Defendants for Summary Dismissal Under UCPR R 13.4(1), Alternatively Strike Out Under R 14.28(1)
Outcome
Proceedings dismissed; the plaintiff ordered to pay the defendants' costs of the proceedings in this court, including the motions.
Legal Topics
['summary Dismissal' 'abuse of Process' 'collateral Attack on District Court Judgment' "solicitors' Conduct" 'personal Injury Claim']
['civil Procedure' 'torts' 'legal Profession'] ['summary Dismissal' 'abuse of Process' 'collateral Attack on District Court Judgment' "solicitors' Conduct" 'personal Injury Claim']

Case Brief

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Procedural Posture

Common Law Proceedings Seeking Damages for Personal Injury Against Solicitors Arising From Conduct of a District Court Personal Injury Claim / Motions by Both Defendants for Summary Dismissal Under UCPR R 13.4(1), Alternatively Strike Out Under R 14.28(1)

Legal Issues

  1. 1 ["Whether the plaintiff's proceedings were an abuse of process because they collaterally attacked the District Court judgment in McLean v Star City Pty Ltd [2008] NSWDC 143." 'Whether the claims that the defendants knowingly presented forged DVD footage or withheld evidence disclosed any arguable case.' 'Whether the proceedings were manifestly groundless and should be summarily dismissed.']

Ratio Decidendi

The proceedings were an abuse of process because, under the guise of allegations about the defendants' conduct, they sought to relitigate the plaintiff's personal injury claim and re-examine findings made in the District Court that the DVD depicted the relevant incident and that the editing of footage and unavailability of the incident report had not prejudiced the plaintiff. Relitigation would be manifestly unfair to the defendants and would bring the administration of justice into disrepute. In any event, the allegations that the defendants knowingly produced a false DVD or withheld evidence were baseless, including because Mr Power had no role in the preparation or conduct of Star...

Court Disposition

Proceedings dismissed; the plaintiff ordered to pay the defendants' costs of the proceedings in this court, including the motions.

Orders

  • ['The proceedings against both defendants are dismissed.' "Mr McLean is to pay the defendants' costs of the proceedings in this court, including these motions."]