Corner bht M Corner v Gall [2022] NSWDC 589

District Court New South Wales

Medium Neutral Citation: Corner bht M Corner v Gall [2022] NSWDC 589 Hearing dates: 11, 25 November 2022 Date of orders: 25 November 2022 Decision date: 25 November 2022 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 45 Catchwords: CIVIL PROCEDURE – torts – motor accidents – plaintiff represented by tutor – defendant alleged fraud or misleading statements by the plaintiff and the tutor - long delay in prosecution of the proceeding – default by the plaintiff in compliance with order for her to attend medical examinations without explanation – whether proceeding should be dismissed for such default or (alternatively) for want of despatch Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58 Motor Accidents Compensation Act 1999 (NSW) ss 86, 117, 118 Uniform Civil Procedure Rules 2005 rr 12.7, 23.4, 23.9 Texts Cited: Ritchie's Uniform Civil Procedure (NSW), LexisNexis Category: Principal judgment Parties: Corner BHT M Corner (plaintiff) M Gall (defendant) Representation: Mr J Catsanos SC for the defendant File Number(s): 2018/000315522 Publication restriction: Nil

REASONS FOR Judgment 1. The defendant (the applicant) brings an application, by notice of motion, that the proceeding be dismissed pursuant to rules 12.7 and 23.9 of the Uniform Civil Procedure Rules 2005 (UCPR). 2. The motion was partly heard before me on 11 November 2022. No appearance was made for the plaintiff. There was some brief argument before me by Mr Catsanos SC, acting for the applicant, in which I questioned whether, on the assumption that the power to dismiss the proceeding under r 23.9 of the UCPR was engaged, it should be exercised in a way that would deprive the plaintiff (now unrepresented) from commencing a fresh action. With that indication, Mr Catsanos SC applied for and was granted leave to amend his client's motion to add r 12.7 of the UCPR as an alternative source of power to dismiss the proceeding. The proceeding was then adjourned for two weeks to give further notice to the plaintiff of the amendment granted. 3. The applicant now renews his application to dismiss the proceeding.