Thompson v New South Wales Land and Housing Corporation [2008] NSWSC 74 (13 February 2008)

Last Updated: 15 February 2008

NEW SOUTH WALES SUPREME COURT

CITATION:
Thompson v New South Wales Land & Housing Corporation [2008] NSWSC 74


JURISDICTION:


FILE NUMBER(S):
20380/05

HEARING DATE(S):
8 February 2008

JUDGMENT DATE:
13 February 2008

PARTIES:
Murray Thompson (Plaintiff)
New South Wales Land nd Housing Corporation (First Defendant)
ACN 005 511 062 (Second Defendant)

JUDGMENT OF:
Malpass AsJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
L Judd (Plaintiff)
M J Jenkins (Second Defendant)

SOLICITORS:
Herbert Weller (Plaintiff)
McCabe Terrill (First Defendant)
Carroll & O'Dea (Second Defendant)


CATCHWORDS:
COMMON LAW
registrars
applications
exercise of discretionary power and reasons

LEGISLATION CITED:
Uniform Civil Procedure Rules 2005

CATEGORY:
Principal judgment

CASES CITED:


TEXTS CITED:


DECISION:
1. Pursuant to Rule 49.19 of the Unifirm Civil Procedure Rules 2005, the decision of Registrar Bradford made on 20 December 2007 granting leave to the Plaintiff to file a Further Amended Statement of Claim (to join the Second Defendant as a defendant to the Plaintiff's proceedings) is set aside.
2. The Further Amended Statement of Claim filed on 20 December 2007 is struck out as to causes of action and relief pleaded by the Plaintiff against the Second Defendant and within seven days the Plaintiff is to file and serve a Second Further Amended Statement of Claim so as to give effect to this order.
3. The Plaintiff is to pay the Second Defendant's costs of the Notice of Motion filed on 17 January 2008 and the listing of the proceedings before Registrar Bradford on 20 December 2007.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

Associate Justice Malpass

Wednesday 13 February 2008

20380/05 Murray Thompson v New South Wales Land and Housing Corporation & ACN 005 511 062 Pty Ltd

REASONS FOR JUDGMENT

1 HIS HONOUR: The plaintiff has brought proceedings in this Court seeking damages in respect of personal injury. Initially, proceedings were brought against one defendant only.

2 The plaintiff contemplated joining a second defendant. However, there was a problem about the expiry of the relevant limitation period. Directions were given concerning the bringing of an application for an extension of time. At the present time no such application has been brought.

3 On 20 December 2007, the matter was listed for a status conference before Registrar Bradford. The then proposed second defendant was already a party to the proceedings (as first cross-defendant). An oral application, without notice, was brought by the plaintiff to file a Further Amended Statement of Claim which joined the proposed second defendant as a party. The application was opposed. Following a brief hearing, orders were made by the Registrar (including an order giving leave to file the proposed Further Amended Statement of Claim). Subsequently, this document was filed.

4 By Notice of Motion filed on 17 January 2008, the second defendant has sought a review and seeks relief in relation to the decision of the Registrar (including setting aside the order giving leave to file the Further Amended Statement of Claim).

5 The review was undertaken on 8 February 2008. The second defendant and the plaintiff were represented by counsel. The first defendant consented to the setting aside of the order.

6 The second defendant relied on an affidavit sworn by Hameesha Kumar on 17 January 2008. In that affidavit, she deposed inter alia to the following:-

“4. On 20 December 2007 the matter was listed for a status conference before Registrar Bradford. I appeared on behalf of the First Cross Defendant, Mr Cairns appeared for the Plaintiff and Ms Tracey Emanuel appeared for the First Defendant /First Cross Claimant.

5. Mr Cairns informed the Court that he would be seeking leave to file a Further Amended Statement of Claim joining the First Cross Defendant as a Second Defendant in the substantive proceedings.

6. I made submissions to Registrar Bradford indicating that immediately prior to the matter being heard before Registrar Bradford, Mr Cairns had indicated to me that he would be filing a Further Amended Statement of Claim joining the First Cross Defendant as a Second Defendant in the proceedings. I made submissions to Registrar Bradford indicating that the First Cross Defendant objected to the filing of a Further Amended Statement of Claim as there were issues in relation to the time limitation period. I also referred to orders made by Registrar Bradford on 20 August 2007 such that the Plaintiff was to file a Notice of Motion within 14 days of 30 August 2007, that is by 13 September 2007 to seek leave of the Court to join the First Cross Defendant as a Second Defendant in the substantive proceedings. I made submissions that an order be made for the Plaintiff to file a Notice of Motion to seek leave of the Court to file a Further Amended Statement of Claim to join the First Cross Defendant as a Second Defendant.”

7 The only material before the Registrar was the proposed Further Amended Statement of Claim. The plaintiff did not lead any evidence to support the application. The material he did have demonstrated at least a prima facie state of affairs whereby the relevant limitation period had expired. The causes of action were framed in contract and tort. The alleged breaches were said to occur on or about 7 December 2000 and 21 February 2001.

8 In the making of his order, the Registrar was exercising a discretionary power. He was required to exercise it judicially. The exercise of such a power usually involves considerations of the viability of the alleged causes of action together with questions of delay, explanation for delay and prejudice. The onus is borne by the party seeking a favourable exercise of the discretionary power.

9 The Registrar gave no reasons for his decision. What moved him to make that decision remains in the realm of the unknown. As he had received no evidence on the relevant considerations, the probability is he did not have regard to any of those matters.

10 The second defendant easily discharged the onus borne by it to have the order set aside. Indeed, ultimately there was minimal resistance to that course. The Notice of Motion was irresistible.

11 At the conclusion of the review, I gave my decision and delivered short oral reasons for that decision. I informed the parties that detailed written reasons would be provided in due course. The parties did not require the application to be re-listed for that purpose. Orders were made in terms of the Short Minutes of Order signed by counsel.

12 As can be seen from what has been said, there was an abundance of reasons why the review should resolve successfully for the second defendant. Before concluding this judgment, I should place considerable emphasis on one of those matters. It of itself may justify the granting of relief. I refer to the matter of reasons.

13 What was said during submissions gave rise to the suggestion that there may be a regular practice in the Registrar’s Court of deciding applications without providing reasons. If that be the case, it would be prudent for that practice to promptly come to an end.

14 The registrars now have the jurisdiction to entertain a wide variety of application work and are expected to exercise that jurisdiction. It is essential that sufficient reasons be given for a decision. What may suffice will vary from case to case. There will be applications that can be disposed of with the delivery of short oral reasons.

15 It is only by the delivery of reasons that parties can know how a result came to be reached and be able to pursue effectively rights of challenge to that decision.

16 In this case the parties had no inkling as to the reasoning process that led to the decision. Fortunately, the Court was able to deal with the matter because the decision was so blatantly erroneous.

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LAST UPDATED:
15 February 2008