Makucha v Brian Tucker & Associates Pty Ltd [2005] NSWCA 397

New South Wales Court of Appeal

CITATION: Makucha v Brian Tucker & Associates Pty Ltd [2005] NSWCA 397

31/10/05 HEARING DATE(S):

JUDGMENT DATE: 22 November 2005

JUDGMENT OF: Handley JA at [1]; Tobias JA at [2]; Hunt AJA at [3]

DECISION: 1. Leave to appeal against the orders of Master Malpass is granted 2. In lieu of the orders made by the master (1) The appeal to the Supreme Court by Paul Makucha against the orders made by Magistrate O'Shane in the Local Court in proceedings 1188/02 is allowed (2) The order made by the magistrate refusing leave to Mr Makucha to amend his Grounds of Defence is set aside, and leave is granted to Mr Makucha to file amended Grounds of Defence within twenty-one days from the date of this judgment (3) Mr Makucha is ordered to pay the costs of the application to amend (4) All other orders made by the magistrate (including the order for costs on the first day of the hearing) are set aside, and the matter is otherwise remitted to the Local Court to be determined by a differently constituted Court (5) Brian Tucker & Associates Pty Ltd is ordered to pay the costs of the appeals to the Supreme Court before the master and to this Court, and (if eligible) it is to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: Denial of procedural fairness - magistrate continues hearing after citing defendant for contempt and directing Sheriff's officers to arrest and remove him from the court and place him in the cells - ruling that the defendant did not intend to participate further in the hearing - ruling not open on the evidence - order striking out defendant's Grounds of Defence and refusal to grant leave to amend - issue to be added by proposed amendment already being litigated by both parties - no objection by plaintiff to amendment - refusal based on failure of defendant to amend in the early stages of the litigation - State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146 applied.