Shara Projects Pty Ltd v Blacktown City Council [2023] NSWSC 82

Supreme Court New South Wales

Medium Neutral Citation: Shara Projects Pty Ltd v Blacktown City Council [2023] NSWSC 82 Hearing dates: 3 February 2023 Date of orders: 14 February 2023 Decision date: 14 February 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: I order that: 1. The motion is dismissed. 2. Unless the parties approach to be heard within 14 days, Shara must bear the Council's costs, as agreed or assessed. Catchwords: CIVIL PROCEDURE — summary dismissal — where plaintiff pursued defendant for professional negligence — where plaintiff repeatedly failed to comply with orders about service of evidence — Civil Procedure Act 2005 (NSW), s 56 — where self-executing order for dismissal in the event of future failure to comply with orders made — Uniform Civil Procedure Rules 2005 (NSW), r 12.7 — where proceedings dismissed for want of due despatch as a result of further failure to serve evidence CIVIL PROCEDURE — where plaintiff applies for order dismissing proceedings to be set aside — Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 2.3 — whether Court is functus officio — whether rr 2.1 and 2.3 permit orders dismissing proceedings be set aside — rr 2.1 and 2.3 are for case management of proceedings on foot — where r 36.16 not relied on and not of assistance given plaintiff's delay in filing motion — whether Court has inherent power to set aside order dismissing proceedings — no power — motion dismissed EVIDENCE — Expert opinion — where plaintiff has served outstanding expert evidence — where report discloses further consideration must be given by expert to other matters — whether such matters could be dealt with by expert giving oral evidence at hearing — Uniform Civil Procedure Rules 2005 (NSW), rr 31.29, 31.28 — expert evidence to be given by report served before hearing Legislation Cited: Civil Procure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 61 Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 2.3, 12.7, 31.28, 31.29, 36.16, 42.1 Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 De Varda v Austin [2019] NSWCA 133 DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 FAI General Insurance Co Ltd v Southern Cross Exploration N L (1988) 165 CLR 268; [1988] HCA 13 Mahommed v Unicomb [2021] NSWCA 108 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Shara Projects Pty Ltd v Blacktown City Council (Supreme Court (NSW), Harrison J, 1 July 2022, unrep) Shara Projects Pty Ltd v Blacktown City Council (Supreme Court (NSW), Harrison J, 29 April 2022, unrep) Thiele v Radford [2008] NSWSC 1162 Category: Procedural rulings Parties: Shara Projects Pty Ltd (Plaintiff) Blacktown City Council (Defendant) Representation: Counsel: Mr D Eardley (Plaintiff) Mr D Priestley SC (Defendant)