Golden v V’Landys [2015] NSWSC 1589

Golden v V’Landys [2015] NSWSC 1589

Although the defendants could not point to specific prejudice, the plaintiff failed to demonstrate any real or reasonably persuasive explanation for seeking to rely on further lay and expert evidence after his evidence had closed and shortly before the hearing date; the discretionary leave sought was therefore refused.

Jurisdiction
Australia
Judgment Date
29 October 2015
Procedural Posture
Application for Leave to File and Rely Upon Further Evidence in Proceedings Claiming Relief in the Nature of a Prerogative Writ and Damages in Tort / Interlocutory Application in the Duty List Before a Hearing Date Set for 10 November 2015
Outcome
Application refused; plaintiff ordered to pay each defendant's costs of the proceedings before Button J.
Legal Topics
['late Evidence' 'court Ordered Timetables' 'maintenance of Hearing Dates' 'misfeasance in Public Office' 'prerogative Relief' 'costs']
['practice and Procedure' 'administrative Law' 'torts'] ['late Evidence' 'court Ordered Timetables' 'maintenance of Hearing Dates' 'misfeasance in Public Office' 'prerogative Relief' 'costs']

Case Brief

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Procedural Posture

Application for Leave to File and Rely Upon Further Evidence in Proceedings Claiming Relief in the Nature of a Prerogative Writ and Damages in Tort / Interlocutory Application in the Duty List Before a Hearing Date Set for 10 November 2015

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to rely upon further evidence served at a very late stage.' "Whether service of the further evidence would prejudice or disrupt the defendants' preparation for hearing." 'Whether the plaintiff provided a reasonably persuasive explanation for the delay in bringing forward the evidence.']

Ratio Decidendi

Although the defendants could not point to specific prejudice, the plaintiff failed to demonstrate any real or reasonably persuasive explanation for seeking to rely on further lay and expert evidence after his evidence had closed and shortly before the hearing date; the discretionary leave sought was therefore refused.

Court Disposition

Application refused; plaintiff ordered to pay each defendant's costs of the proceedings before Button J.

Orders

  • ['The plaintiff is refused leave to rely upon the affidavit of Peter Sherman sworn 17 June 2015.' 'The plaintiff is refused leave to rely upon the affidavit of Joseph Golden of 18 August 2015.' 'The plaintiff is refused leave to rely upon the report of Gino Malacco of 2 October 2015.' 'The plaintiff must pay the...