Douglas & Anor v Madden & Ors (No 3) [2009] NSWSC 412

Douglas & Anor v Madden & Ors (No 3) [2009] NSWSC 412

The court found that the plaintiffs' failure to comply with the self-executing order resulted from representative error, not contumelious conduct. The explanation now given, though late, was adequate and not challenged. There was no actual prejudice to the defendants from the delay, and justice would not be served by refusing to permit the case to proceed. The orders were therefore varied to permit further time for compliance, with the plaintiffs to bear the defendants' costs of the motion.

Jurisdiction
Australia
Judgment Date
22 May 2009
Procedural Posture
Civil Motion to Vary a Self Executing Order / Interlocutory Application After Proceeding Dismissed for Failure to Comply With Order
Outcome
Order on 13 February 2009 varied as requested; plaintiffs to pay defendants' costs of the motion.
Legal Topics
['self Executing Orders' 'variation of Orders' 'non Compliance' 'representative Error' 'costs']
['civil Procedure'] ['self Executing Orders' 'variation of Orders' 'non Compliance' 'representative Error' 'costs']

Case Brief

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Procedural Posture

Civil Motion to Vary a Self Executing Order / Interlocutory Application After Proceeding Dismissed for Failure to Comply With Order

Legal Issues

  1. 1 ['Whether a self-executing order dismissing the proceeding for failure to comply should be varied after non-compliance and prior refusal of relief' 'Whether representative error is a sufficient explanation for failure to comply with orders' 'Whether granting the application is consistent with justice and the overriding purpose of the Civil Procedure Act']

Ratio Decidendi

The court found that the plaintiffs' failure to comply with the self-executing order resulted from representative error, not contumelious conduct. The explanation now given, though late, was adequate and not challenged. There was no actual prejudice to the defendants from the delay, and justice would not be served by refusing to permit the case to proceed. The orders were therefore varied to permit further time for compliance, with the plaintiffs to bear the defendants' costs of the motion.

Court Disposition

Order on 13 February 2009 varied as requested; plaintiffs to pay defendants' costs of the motion.

Orders

  • ["Orders made on 13 February 2009 varied by replacing '4pm on 27 February' with '12 noon on 2 March 2009'." "Plaintiffs to bear defendants' costs of the motion as agreed or assessed."]