CIVIL PROCEDURE — notice of motion — self-represented litigant — ambiguity as to whether summons seeks judicial review or appeal — motion to amend summons previously dismissed with costs — where additional summons filed to ventilate constitutional validity argument — where argument needs to be raised on present summons — leave granted to file amended summons
CIVIL PROCEDURE — summons — hearing vacated to allow plaintiff to file amended summons — costs
Quick Take
1Where a self-represented plaintiff's constitutional invalidity argument based on Kable v DPP (NSW) is at least arguable and determination of the existing summons without that argument would likely shut the plaintiff out from raising it (due to abuse of process), leave to amend should be granted notwithstanding a prior unsuccessful amendment application, even at a late stage.
2The ordinary costs rule for motions under UCPR rr 42.1 and 42.7 is that costs follow the event, not that costs be in the cause; a party who raises a substantial new argument only shortly before hearing, causing vacation of the hearing date, will bear the thrown-away costs.
3UCPR r 36.16(3A) permits setting aside of orders if a motion is filed within 14 days of entry, but the power is discretionary and will not be exercised where the original order was not shown to be erroneous.
