Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431

Supreme Court New South Wales

Medium Neutral Citation: Ciprijanovic v Schindler Lifts Australia Pty Ltd [2013] NSWSC 431 Hearing dates: 28/03/2013, 10/04/2013 Decision date: 02 May 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the Notice of Motion filed by the plaintiff on 19 March 2013 be dismissed. (2) Reserve any question of costs of the motion. Catchwords: PROCEDURE - motion to strike out parts of a defence - non-admission and denial in a defence may constitute proper pleading - no issue of general principle Legislation Cited: Civil Liability Act 2002 Uniform Civil Procedure Rules 2005 Workers' Compensation Act 1987 Category: Procedural and other rulings Parties: Andelija Ciprijanovic (P) Schindler Lifts Australia Pty Ltd (D1) South Western Sydney Local Health District (D2) Representation: Counsel: S Eistis (P) D Lloyd (D1) L Morgan (D2) Solicitors: The Compensation Lawyers (P) Wotton & Kearney (D1) Moray & Agnew (D2) File Number(s): 2011/260544

Judgment 1The plaintiff, Ms Andelija Ciprijanovic, by a Notice of Motion filed on 19 March 2013, seeks orders to strike out paragraphs 5 and 6 of the defence of the first defendant.

28 March 2013 2The argument on the matter took place initially on 28 March 2013. In advance of that argument, submissions had been filed. 3The solicitor for the plaintiff, when called upon to make any further oral submissions to the Court on that day, indicated that he did not wish to do so and was content to rely upon his written submissions. 4I then delivered an ex tempore judgment on the Notice of Motion, in which I expressed the conclusion that I should dismiss it. 5After delivery of my reasons but before orders were formally entered, it became apparent to the solicitor for the plaintiff that the orders sought in the Notice of Motion, were not correctly expressed. He sought, and was granted leave, to amend the Notice of Motion, and to file any further evidence upon which he wished to rely. 6In the circumstances, I took the view that the better course was to regard the Motion as part heard, to in effect, withdraw the judgment, and allow the plaintiff the opportunity of putting any further submissions that were necessary. The first defendant did not oppose this course, subject to any submissions about costs. I reserved costs.