Werner v Commonwealth [2022] NSWSC 1388

Supreme Court New South Wales

Medium Neutral Citation: Werner v Commonwealth [2022] NSWSC 1388 Hearing dates: 10 and 13 October 2022 Date of orders: 13 October 2022 Decision date: 13 October 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) Grant access to both parties to the material produced on subpoena by Dr M Hopwood. (2) List the matter for hearing on 6 and 7 December 2022 for argument as to: (i) Whether the Limitation Act issue should be determined as a separate issue from the plaintiff's substantive claim. (ii) If so, whether the plaintiff's suit should be allowed to be brought outside of the limitation period. (3) Make the following case management directions for the purpose of the hearing on 6 and 7 December: (i) The plaintiff is to file and serve its evidence on those issues on or before 5:00pm on Friday 5 November 2022. (ii) The defendant to file and serve its evidence on or before 5:00pm on Friday 19 November 2022. (iii) The plaintiff to file and serve any evidence in reply on or before 5:00pm Friday 26 November 2022. (iv) The plaintiff to file and serve written submissions (limited to 15 pages) on or before 5:00pm Friday 26 November 2022. (v) The defendant is to file and serve written submissions (limited to 15 pages) on or before Friday 3 December 2022. (vi) Each party to notify the other which witnesses (if any) are required for cross-examination on or before Friday 26 November 2022. (4) Confirm that the matter is listed before the Registrar for further directions on 28 October 2022. (5) Costs of and incidental to the notice of motion, up to and including Monday 10 October 2022, are reserved to the trial Judge. (6) The plaintiff is to pay the defendant's costs of and incidental to the second day of the hearing of the notice of motion (Thursday 13 October 2022). Catchwords: COSTS – application for expedited hearing of limitation issue – where notice of motion resolved without determining issue in dispute – application adjourned for plaintiff to determine if it maintained an assertion that certain document privileged – reasonably clear privilege had been waived – hearing delayed as a result – intransigence – plaintiff to pay defendant's costs of second day – costs otherwise reserved to trial judge Legislation Cited: Limitation Act 1969 (NSW) Category: Procedural rulings Parties: John Lorrence Werner (Plaintiff) Commonwealth (Defendant) Representation: Counsel: G Thomson (Plaintiff) M Kelly (Defendant)