Hans Pet Constructions Pty Limited v Cassar

[2009] NSWCA 230

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Case management
3. › Striking out defence for non-compliance with directions
4. › Whether proportionate exercise of power
5. › Whether magistrate had regard to just determination of proceedings as required by statute
6. › Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 61
1. Practice and Procedure
2. › Case management
3. › Vacation of hearing dates
4. › Failure to file notice of motion
5. › Whether failure to file motion justified striking out defence
6. › Local Court Practice Note No 1 of 2005
1. Practice and Procedure
2. › Judgments and orders
3. › Review of discretionary decisions
4. › Standard of appellate review
5. › Whether magistrate failed to take into account mandatory statutory considerations
6. › House v R (1936) 55 CLR 499

Quick Take

When exercising case management powers under s 61 of the Civil Procedure Act 2005 (NSW), including the power to strike out a defence, a court must give weight to s 57(1)(a) — 'the just determination of the proceedings' — as a fundamental element in the decision-making process, as required by s 58(2)(a). Failure to do so constitutes appealable error. The power to strike out a defence is not to be used as punishment for non-compliance with directions, and a proportionate response to failure to file evidence will rarely require more than a refusal to vacate hearing dates and a direction that the matter proceed on the evidence then filed.