Adam Mortley trading as inspira nutritionals v National Disability Insurance Agency [2024] NSWDC 19

District Court New South Wales

Medium Neutral Citation: Adam Mortley trading as inspira nutritionals v National Disability Insurance Agency [2024] NSWDC 19 Hearing dates: 12 February 2024 Date of orders: 14 February 2024 Decision date: 14 February 2024 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph [38] Catchwords: CIVIL PROCEDURE – application for summary dismissal COSTS – application for gross sum costs order Legislation Cited: Australian Consumer Law Civil Procedure Act 2005 (NSW) National Disability Insurance Scheme Act 2013 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1993) 176 CLR 344 Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 Bechara (t/as Bechara) v Bates [2016] NSWCA 294 Young v CEO (Housing) [2023] HCA 31 Texts Cited: Nil Category: Procedural rulings Parties: Adam Mortley (plaintiff/respondent) National Disability Insurance Agency (first defendant/applicant) Representation: Counsel: Mr A Mortley (plaintiff/respondent – self-represented) Ms R Withana (first defendant)

Solicitors: Bartier Perry (first defendant/applicant) File Number(s): 2023/00320939 Publication restriction: Nil

JUDGMENT

Introduction 1. On or about 10 October 2023 Mr Adam Mortley commenced this suit against the National Disability Insurance Agency (NDIA) and David Cunningham. Mr Cunningham is in receipt of funding from the NDIA. Neither of the defendants have yet filed a Defence. 2. On 16 November 2023, the NDIA filed a motion seeking summary dismissal or in the alternative, a strike out application. It returned to me today, in the first day of the February 2024 civil sittings list for Parramatta. 3. Unsolicited by me, Mr Cunningham, who has not filed a notice of appearance but nevertheless attended court, indicated his verbal support to the NDIA' application. 4. The statement of claim was prepared without legal assistance and, on this application, Mr Mortley represented himself. 5. The statement of claim has several vices in obscuring the underlying basis, or bases of the claim, but as is well-established, whether a pleading can survive a summary dismissal application depends upon whether the underlying action, however it appears in form, is reasonably arguable, or gives rise to or creates a triable issue. Put in the negative, the applicant for such an order must prove that there is a high degree of certainty that the action will fail.