McWilliam & 2 Ors v Watson [2000] NSWSC 170

New South Wales Supreme Court

CITATION : McWilliam & 2 Ors v Watson [2000] NSWSC 170 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 1536/92 HEARING DATE(S) : 25 February 2000 JUDGMENT DATE : 17 March 2000

Bruce McWilliam (First Plaintiff)

Bruce Scott McWilliam (Second Plaintiff)

Peter Bruce McWilliam (Third Plaintiff) PARTIES : Richard Anthony Watson (First Defendant)

Phillip Gregory Davey (Second Defendant)

Louis William Le Compte (Third Defendant) JUDGMENT OF : Master Harrison

Mr P R Glissan (First & Second Plaintiffs) COUNSEL : Mr B Shields (Defendants) John Cunningham (Plaintiffs) SOLICITORS : Ebsworth & Ebsworth (Defendants) Morgan v 45 Flers Avenue Pty Limited (1987) 11 NSWLR 573 CASES CITED : FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) ALR 411 Cohen v McWilliam (1995-96) 38 NSWLR 476 State of Queensland v J L Holdings Pty Limited (1996) 141 ALR 353 DECISION : See para 12

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 17 MARCH 2000

15356/92 - BRUCE McWILLIAM & 2 ORS v RICHARD ANTHONY WATSON t/as WATSON DAVEY, SOLICITORS

JUDGMENT (Vary orders)

1 MASTER: By notice of motion filed 31 August 1999 the second and third plaintiffs seek that the time of compliance with paragraph 3 of my orders dated 11 February 1998 be extended up to and including 16 October 1998; that the first plaintiff be removed as a party to these proceedings with effect as and from 27 June 1998 or alternatively such other order consequent upon the death of the first plaintiff on 27 June 1998. The second and third plaintiffs relied on the affidavit of the second plaintiff sworn 23 July 1999. The defendant relied on the affidavit of Jacqueline Louise Fredman affirmed 4 November 1999. The first plaintiff Bruce McWilliam died on 27 June 1998. The second plaintiff is Bruce Scott McWilliam and the third plaintiff is Peter Bruce McWilliam. The second plaintiff is the first plaintiff's son. 2 I refer to my reasons of 11 February 1998 particularly the portion where it was stated: "Although there certainly has been delay, mainly by the plaintiffs, I would classify it as just falling short of contumelious. I am not satisfied that the plaintiffs' delay is intentional or that they have no intention of carrying the case to trial. However, if the plaintiffs were to continue it with their tardy preparation, I may change my view. As previously stated, I cannot conclude that the plaintiffs have no cause of action and the statement of claim should be dismissed. Even though the statement of claim as currently pleaded is embarrassing and causes some prejudice to the defendant in that it does not know the substance of the case it has to meet, the proceedings should not be struck out. The statement of claim falls short of being considered an abuse of process of the court. It is my view that the plaintiffs should be given an opportunity to amend the statement of claim in order to plead properly the cause or causes of action in such a manner that the defendant can meet those claims." 3 In short I was giving the plaintiffs one last chance to comply with court directions. To this end I made self executing orders: "(1) …