Aldous v State of New South Wales [2014] NSWCA 280

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Aldous v State of New South Wales [2014] NSWCA 280 Hearing dates: 13 August 2014 Decision date: 13 August 2014 Before: Barrett JA at [1], Emmett JA at [24], Tobias AJA at [25] Decision: 1. Appeal allowed. 2. Set aside orders made by the District Court at Parramatta on 6 February 2013 and entered on 7 February 2013 and in lieu thereof order as follows: (1) Order pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the defence be stuck out and that the defendant have leave to replead. (2) Order that the defendant pay the plaintiff's costs of the motion. 3. No order for costs in this Court. 4. That the respondent pay the appellant's court filing fees in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - pleading - plaintiff sought an order striking out an unrepresented defendant's defence - defence drawn by the defendant himself - being of the opinion that the defence disclosed no ground of defence, the primary judge ordered summary judgment for the plaintiff - no application for summary judgment before the court - no intimation to the defendant that summary judgment against him was a possible outcome - breach of procedural fairness and natural justice - on appeal, judgment set aside and defence struck out but with leave to replead Legislation Cited: Civil Procedure Act 2005 (NSW), s 73 Contracts Review Act 1980 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rules 7.36, 13.1, 14.28 Category: Principal judgment Parties: Adrian John Aldous (Appellant) State of New South Wales (Respondent) Representation: Counsel: Appellant in person J J Hyde (Respondent - submitting appearance) D A McLure/K S Anderson (Amici Curiae) Solicitors: Appellant self-represented De Mestre and Company (Respondent) File Number(s): CA 2013/199575 Decision under appeal Date of Decision: 2013-02-06 00:00:00 Before: Delaney DCJ File Number(s): DC 2010/99473