Droga v Cannon [2015] NSWSC 1502

Droga v Cannon [2015] NSWSC 1502

Ground 4 was struck out because it did not disclose an error of law and was vexatious and embarrassing. The transcript did not show that the Plaintiff objected to the Defendants' counsel's closing submissions about need, or submitted that the Magistrate should refuse to allow or disregard them; instead, the Plaintiff sought to reopen or adjourn to address her failure to prove need. Any breach by counsel in raising the issue would ordinarily be attributable to the client and was already covered, if at all, by ground 3B. Any procedural error was waived by the failure to object and did not itself amount to procedural unfairness. Nothing was achieved by maintaining a separate allegation...

Jurisdiction
Australia
Judgment Date
16 October 2015
Procedural Posture
Appeal to the Supreme Court From a Local Court Decision; Interlocutory Motions Concerning the Form of the Plaintiff's Summons / Hearing of the Defendants' Motion to Strike Out Appeal Ground 4 and the Plaintiff's Motion for Leave to File an Amended Summons
Outcome
Ground 4 was struck out; the Plaintiff was granted leave to file an amended summons omitting paragraph 4; the Plaintiff was ordered to pay the costs of both motions.
Legal Topics
['appeal From Local Court on a Question of Law' 'strike Out of Appeal Ground' 'overriding Purpose' 'procedural Fairness' 'vexatious and Embarrassing Grounds' 'leave to Amend Summons' 'loss of Use of Motor Vehicle']
['civil Procedure' 'appeals' 'costs' 'motor Vehicle Damages'] ['appeal From Local Court on a Question of Law' 'strike Out of Appeal Ground' 'overriding Purpose' 'procedural Fairness' 'vexatious and Embarrassing Grounds' 'leave to Amend Summons' 'loss of Use of Motor Vehicle']

Case Brief

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Procedural Posture

Appeal to the Supreme Court From a Local Court Decision; Interlocutory Motions Concerning the Form of the Plaintiff's Summons / Hearing of the Defendants' Motion to Strike Out Appeal Ground 4 and the Plaintiff's Motion for Leave to File an Amended Summons

Legal Issues

  1. 1 ["Whether ground 4 of the Summons, alleging that the Magistrate erred by allowing the Defendants' counsel or legal representatives to breach s 56(4)(a) of the Civil Procedure Act 2005 (NSW), disclosed an error of law for the purposes of an appeal from the Local Court." 'Whether ground 4 was vexatious and embarrassing and should be struck out.' 'Whether the Plaintiff should have leave to file an amended summons containing ground 4 or any variation of it.' 'Who should pay the costs of the two motions.']

Ratio Decidendi

Ground 4 was struck out because it did not disclose an error of law and was vexatious and embarrassing. The transcript did not show that the Plaintiff objected to the Defendants' counsel's closing submissions about need, or submitted that the Magistrate should refuse to allow or disregard them; instead, the Plaintiff sought to reopen or adjourn to address her failure to prove need. Any breach by counsel in raising the issue would ordinarily be attributable to the client and was already covered, if at all, by ground 3B. Any procedural error was waived by the failure to object and did not itself amount to procedural unfairness. Nothing was achieved by maintaining a separate allegation...

Court Disposition

Ground 4 was struck out; the Plaintiff was granted leave to file an amended summons omitting paragraph 4; the Plaintiff was ordered to pay the costs of both motions.

Orders

  • ['Ground 4 of the Summons filed 16 July 2015 is struck out.' 'The Plaintiff has leave to file an amended summons in the form of annexure "I" to the affidavit of Vanessa Leonie Naidu sworn 10 September 2015 but omitting paragraph 4 therefrom.' "The Plaintiff is to pay the costs of the Defendant's Motion filed 10...