Falconer v Laird [2003] NSWCA 114

New South Wales Court of Appeal

CITATION : Falconer v Laird [2003] NSWCA 114 HEARING DATE(S) : 11 April 2003 JUDGMENT DATE : 15 May 2003

JUDGMENT OF : Handley JA at 1; Beazley JA at 2; Giles JA at 3 DECISION : In Court of Appeal proceedings 40309/02: (1) Grant leave to appeal; (2) Subject to filing the notice of apepal within 14 days, appeal allowed; (3) Set aside the orders made by Delaney DCJ on 25 March 2002 extending the time for applying to rescind the deemed dismissal and rescinding the deemed dismissal and in lieu thereof order that the notice of motion filed on 15 February 2002 be dismissed with costs so far as it claimed those orders; (4) Opponent/respondent pay the costs of the claimant/appellant and have a certificate under the Suitors Fund Act if otherwise qualified. In each of Court of Appeal proceedings 40979/02 and 40980/02 the summons is dismissed with costs.

CATCHWORDS : Actions for personal injuries brought in District Court - one defendant not properly named - statements of claim found not to have been served on defendants - actions not prosecuted in timely manner - no praecipes for trial filed - deemed dismissals under Pt 12 r 4C of the District Court Rules - applications to rectify position as to parties and service and rescind dismissals - whether statements of claim had been served - whether validity of statements of claim for service should be extended - whether dismissals should be rescinded - test of whether fair and just - overwhelming prejudice to defendants in defending plaintiff's claims - applications should be dismissed. D Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541; Harding v Bourke (2000) 48 NSWLR 59; Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207; CASES CITED : Kessey v Golledge (1999) 40 MVR 95; Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359; Rust v Barnes (1980) 2 NSWLR 726; Salido v The Nominal Defendant 32 NSWLR 524; Williams v The Minister Aboriginal Land Rights Act 1983 (2000) Aust Torts Reports 81-578. Irene Falconer v Alexander Laird PARTIES : Alexander Laird v Mark Lemming Alexander Laird v Robert Raciti and Leslie Green FILE NUMBER(S) : CA 40309/02; 40979/02; 40980/02 COUNSEL : M R Aldridge SC & J Thompson - Laird C R R Hoeben SC & J P Sewell - Falconer, Lemming, Raciti and Green SOLICITORS : Maxwell Berghouse & Ives, Smithfield - Laird Nevill & Edwards - Falconer, Lemming, Raciti and Green