Voss v Ipkendanz [2009] NSWSC 562

Voss v Ipkendanz [2009] NSWSC 562

The Magistrate erred by failing to provide procedural fairness to Mr Voss when making an order for a further hearing on damages without giving notice or allowing the parties to be heard on that course; UCPR 30.1 did not confer the discretion exercised, and, absent an application under UCPR 28.2, all issues should have been determined together. The appropriate remedy was to set aside the order for a further damages hearing and remit the matter to the Local Court for reconsideration, with directions to provide the parties an opportunity to be heard as to the future progress of the matter.

Jurisdiction
Australia
Judgment Date
19 June 2009
Procedural Posture
Civil Appeal / Application for Leave to Appeal and Determination of Interim Procedural Orders
Outcome
Leave to appeal granted; Local Court’s order for a further hearing on damages set aside; matter remitted to Local Court for determination with opportunity for parties to be heard on future progress, especially on assessment of damages.
Legal Topics
['procedural Fairness' 'appeals From Inferior Courts' 'assessment of Damages' 'discretion Under Ucpr' 'separate Determination of Issues']
['civil Procedure'] ['procedural Fairness' 'appeals From Inferior Courts' 'assessment of Damages' 'discretion Under Ucpr' 'separate Determination of Issues']

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Procedural Posture

Civil Appeal / Application for Leave to Appeal and Determination of Interim Procedural Orders

Legal Issues

  1. 1 ['Whether the Local Court Magistrate erred in directing a further hearing for assessment of damages after hearing all issues including liability and damages' 'Whether there was a denial of procedural fairness to Mr Voss due to the lack of notice or opportunity to be heard on the conduct of the proceedings regarding assessment of damages' 'Whether the Magistrate had discretion under UCPR 30.1 or should have proceeded under UCPR 28.2 or other rule']

Ratio Decidendi

The Magistrate erred by failing to provide procedural fairness to Mr Voss when making an order for a further hearing on damages without giving notice or allowing the parties to be heard on that course; UCPR 30.1 did not confer the discretion exercised, and, absent an application under UCPR 28.2, all issues should have been determined together. The appropriate remedy was to set aside the order for a further damages hearing and remit the matter to the Local Court for reconsideration, with directions to provide the parties an opportunity to be heard as to the future progress of the matter.

Court Disposition

Leave to appeal granted; Local Court’s order for a further hearing on damages set aside; matter remitted to Local Court for determination with opportunity for parties to be heard on future progress, especially on assessment of damages.

Orders

  • ['Leave to appeal granted.' 'The order of the Local Court of 3 October 2008, that there be a further hearing for the assessment of damages, is set aside.' 'The matter is remitted to the Local Court for determination in accordance with these reasons.' 'The Local Court is to provide the parties with an opportunity to...