Falamaki v Wollongong City Council [2004] NSWSC 148

New South Wales Supreme Court

CITATION : Falamaki v Wollongong City Council [2004] NSWSC 148 revised - 15/03/2004 HEARING DATE(S) : 08/03/2004, 09/03/2004 JUDGMENT DATE : 10 March 2004

JUDGMENT OF : O'Keefe J DECISION : A. As to the plaintiff's Notice of Motion; (i) Amendment to paragraph 9.2 of the Further Amended Statement of Claim, as advanced on 8 March 2004 allowed; (ii) Amendment to paragraph 17 of the Further Amended Statement of Claim as advanced on 8 March 2004 refused; (iii) The plaintiff is to pay half the costs incurred on its Notice of Motion since 1 October 2003; B. As to the defendant's Notice of Motion; (i) Paragraphs 16, 17 and 18 of the Further Amended Statement of Claim filed on 22 October 2003 struck out; (ii) The plaintiff is to pay the costs of defendant's Notice of Motion; (iii) The plaintiff is to file a Further Amended Statement of Claim conforming with these reasons within 28 days.

CATCHWORDS : Practice - Pleading - Amendment - Cause of action - Workcover - Prohibition notice - Maxim - Omnia praesumuntur rite et solenniter esse acta (all acts are presumed to have been done rightly and regularly) - Application of maxim to public officials - Application to Workcover inspectors. Local Government Act 1993 LEGISLATION CITED : Occupational Health and Safety Act 1983, s 31S Occupational Health and Safety Act 2000, s 139, Schedule 1 Cassell v The Queen (2000) 201 CLR 189 Davies v Pratt (1855) 17 CB 183; 139 ER 1039 Demerara and its Dependencies (1813) 1 Dods. R 263; 165 ER 1305 Derby v Bury Improvement Commissioners (1869) LR 4 Ex 222 Falamaki v Wollongong City Council [2003] NSWSC 890 CASES CITED : Falamaki v Wollongong City Council (17 September 2003, unreported) Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Ousley v The Queen (1997-1998) 192 CLR 69 Price v Humphries (1958) 2 QB 353 Re ANI Corporation Ltd T/as ANI Engineering (1987) 24 IR 119 Slade v Drake (Hob 295, 80 ER 439 Verdes Estates Pty Ltd v Carbon (1990-1991) 72 LGRA 414 PARTIES : Masood Falamaki - Plaintiff Wollongong City Council - Defendant FILE NUMBER(S) : SC 20488/02 COUNSEL : Mr D Knaggs - Plaintiff (solicitor) Mr J Whyte - Defendant SOLICITORS : Mr Douglas Knaggs - Plaintiff Peedoms Solicitors - Defendant