Kuzminski v Accent Blinds Australia Pty Ltd [2020] NSWCA 150

Kuzminski v Accent Blinds Australia Pty Ltd [2020] NSWCA 150

Leave to appeal was unnecessary and inappropriate because the District Court had not dismissed the applicant's claim against the second respondent, the primary judge plainly intended to allow re-pleading, and the proper course was to seek an order in the District Court granting leave to re-plead or rectifying the slip. The application was dismissed against the first respondent because the applicant did not object to that respondent being removed and had effectively conceded the dismissal of that claim.

Jurisdiction
Australia
Judgment Date
21 July 2020
Procedural Posture
Civil Application for Leave to Appeal / Application for Leave to Appeal From District Court Decision Striking Out Statement of Claim and Dismissing Proceedings Against the First Respondent
Outcome
Application for leave to appeal dismissed.
Legal Topics
['leave to Appeal' 'strike Out of Statement of Claim' 'leave to Re Plead' 'duty of Care to Independent Contractors' "overriding Purpose and Parties' Duty to Assist the Court" 'costs']
['civil Procedure' 'negligence'] ['leave to Appeal' 'strike Out of Statement of Claim' 'leave to Re Plead' 'duty of Care to Independent Contractors' "overriding Purpose and Parties' Duty to Assist the Court" 'costs']

Case Brief

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Procedural Posture

Civil Application for Leave to Appeal / Application for Leave to Appeal From District Court Decision Striking Out Statement of Claim and Dismissing Proceedings Against the First Respondent

Legal Issues

  1. 1 ['Whether leave to appeal should be granted where the primary judge struck out the statement of claim against the second respondent but intended to permit re-pleading and the proceedings against the second respondent remained on foot.' "Whether the applicant's proper course was to approach the District Court for an order granting leave to re-plead rather than seek leave to appeal." 'What costs orders should be made in relation to the application as against the first and second respondents.']

Ratio Decidendi

Leave to appeal was unnecessary and inappropriate because the District Court had not dismissed the applicant's claim against the second respondent, the primary judge plainly intended to allow re-pleading, and the proper course was to seek an order in the District Court granting leave to re-plead or rectifying the slip. The application was dismissed against the first respondent because the applicant did not object to that respondent being removed and had effectively conceded the dismissal of that claim.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • ['Application for leave to appeal dismissed with costs so far as the application relates to the first respondent.' 'Application for leave to appeal dismissed with no order as to costs so far as the application relates to the second respondent.']