Peters v Magistrate Pat O'Shane & 2 Ors [2006] NSWSC 1329

New South Wales Supreme Court

CITATION : Peters v Magistrate Pat O'Shane & 2 Ors [2006] NSWSC 1329

HEARING DATE(S) : 06/12/2006

JUDGMENT DATE : 8 December 2006

JUDGMENT OF : Associate Justice Malpass

DECISION : The judgment of the Local Court is set aside. In lieu thereof, judgment entered for the defendants against the plaintiff for damages to be assessed. The matter is remitted to the Local Court for assessment according to law. The question of the costs of the appeal is reserved.

CATCHWORDS : Alleged breach of agreement between parties for the provision of editing work - commencement of proceedings for damages (Ordinary Statement of Claim claimed an amount for unliquidated damages) - motion for discovery - dispute as to compliance with discovery order - application to Magistrate to strike out defence and enter judgment - defence struck out and judgment entered for the sum claimed in the Ordinary Statement of Claim - appeal - discretionary power of Court - cross examination on affidavit verifying discovery - Rules require the entry of judgment with damages to be assessed - evidentiary deficiency to support amount of the judgment entered - judgment set aside - matter remitted to Local Court for assessment according to law.

LEGISLATION CITED : Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

Michael PETERS PARTIES : Magistrate Pat O'SHANE Simon MURPHY Benjamin WIESS

FILE NUMBER(S) : SC 13440/06

COUNSEL : Mr P.R Nagle (Pl) Mr H. Altan (Defs)

SOLICITORS :

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 735/05

LOWER COURT JUDICIAL OFFICER : O'Shane LCM