Carolan v State of New South Wales and Anor [2013] NSWSC 1593

Supreme Court New South Wales

Medium Neutral Citation: Carolan v State of New South Wales and Anor [2013] NSWSC 1593 Hearing dates: 29 October 2013 Decision date: 29 October 2013 Jurisdiction: Common Law Before: Johnson J Decision: The Notice of Motion filed 2 October 2013 seeking dismissal of the proceedings for want of prosecution is dismissed. Pursuant to Rule 14.24 Uniform Civil Procedure Rules 2005, the Plaintiff is granted leave to file a verified Further Amended Statement of Claim within fourteen days of today. The Plaintiff is to file and serve any further evidence by 19 November 2013. The Defendants are to file and serve any further evidence by 3 December 2013. The Plaintiff is to pay the costs of the Defendants of this Notice of Motion by way of a gross sum costs order under s.98(4)(c) Civil Procedure Act 2005 in the sum of $6,000.00, that sum to be paid within 28 days of today. Catchwords: PRACTICE AND PROCEDURE - application by Defendants to dismiss proceedings for want of prosecution - claim by Plaintiff under s.219 Law Enforcement (Powers and Responsibilities) Act 2002 for delivery of property to him - police seized $702,000.00 in cash from Plaintiff - claim by Plaintiff for return of money - history of non-compliance by Plaintiff with court orders - whether proceedings should be dismissed for want of prosecution - exceptional remedy declined - orders made to progress litigation - Plaintiff to pay Defendants' costs of Notice of Motion by way of gross sum costs order Legislation Cited: Civil Procedure Act 2005 Law Enforcement (Powers and Responsibilities) Act 2002 Uniform Civil Procedure Rules 2005 Cases Cited: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 Appeal of Phillip Allan Grant (His Honour Judge Shannon QC, District Court of New South Wales, 25 September 1981) 6 Petty Sessions Review 2568 Application of Hampton (1972) 3 DCR 59 Commissioner of Police v Bennett (McInerney J, Supreme Court of New South Wales, 17 October 1991) 9 Petty Sessions Review 4311 Fairey v Fairey (No. 2) [2000] NSWCA 173 Fantakis v Commissioner of Police [2013] NSWSC 685 Fleet v State of New South Wales [2009] NSWSC 75 Knorr v Commonwealth Scientific and Industrial Research Organisation and Others (No. 3) [2012] VSC 529 Moloney v Collins [2011] NSWSC 628 Szczygiel v Peeku Holdings Pty Limited [2006] NSWSC 73 Udowenko v St George Bank (A Division of Westpac Banking Corporation) (No. 2) [2011] NSWSC 1122 Texts Cited: --- Category: Interlocutory applications Parties: Sean Carolan (Plaintiff) State of New South Wales (First Defendant) Commissioner of Police for New South Wales (Second Defendant) Representation: Counsel: Mr G Jones (Plaintiff) Mr B Thomson (Solicitor) (First and Second Defendants) Solicitors: Michael Croke & Co (Plaintiff) IV Knight, Crown Solicitor (First and Second Defendants) File Number(s): 2012/355618 Publication restriction: ---