Leach by her tutor Leach v Harpur [2017] NSWDC 251

District Court New South Wales

Medium Neutral Citation: Leach by her tutor Leach v Harpur [2017] NSWDC 251 Hearing dates: 15 August 2017 Date of orders: 08 September 2017 Decision date: 08 September 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to ss 63 and 75 – 77 Civil Procedure Act 2005 (NSW), I enter order (1) (as revised) in accordance with the Consent Judgment dated 1 April 2016 (see order (2) below). (2) Pursuant to s 76 Civil Procedure Act 2005 (NSW), and in accordance with s 30 Civil Liability Act 2002 (NSW), the judgment sum in these proceedings is to be reduced by 30% by reason of the contributory negligence of Tyler Leach. (3) The plaintiff's Notice of Motion filed on 21 July 2017 is stood over to the trial judge. (4) Reserve the issue of costs to the trial judge. (5) Liberty to apply in relation to costs. (6) Confirm the hearing date of Monday 6 November 2017. Catchwords: TORT – personal injury – agreement as to contributory negligence approved by the court pursuant to ss 75 – 77 Civil Procedure Act 2005 (NSW) – prior to the hearing date, the plaintiff seeks to withdraw on the basis of fundamental misapprehension of the legal issues by her former counsel – whether plaintiff should be permitted to withdraw - whether order "entered" – whether unentered order should be set aside – order entered but other issues referred to trial judge – observations as to the correct system of electronic entry of orders on JusticeLink Legislation Cited: Civil Liability Act 2002 (NSW), s 30 Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 61, 62, 63, 73, 75, 76, 77 and 133 District Court Act 1973 (NSW) District Court Rules 1973 (NSW) Motor Accidents Compensation Act 1999 (NSW), ss 7K and 7L Uniform Civil Procedure Rules 2005 (NSW), Part 3, Part 39, Part 40; rr 28.2, 36.1A, 36.4, 36.11 and 36.15 Cases Cited: Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304 Consolidated Lawyers Ltd v Aby-Mahmood [2016] NSWCA 4 Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245 Dawson v ACP Publishing Pty Ltd [2007] NSWSC 542 Dimarti v Dimarti [2015] NSWSC 97 Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 Futhem Pty Ltd v Mills [2012] NSWDC 127 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Independent Commission Against Corruption v Kinghorn [2015] NSWCA 342 Mills v Futhem Pty Ltd (2011) 81 NSWLR 538; [2011] NSWCA 252 Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687 New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950 Nominal Defendant v Livaja [2011] NSWCA 121 Palmer v Clarke (1989) 19 NSWLR 158 Permanent Trustee Company Limited v Mills [2007] NSWSC 336 S Hoffnung & Co Ltd v Hesky [1977] 2 NSWLR 669 Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 Wentworth v Rogers [2002] NSWSC 921 Texts Cited: Mr Justice P W Young AO, "Current Issues" (2011) 85 ALJ 615 Category: Procedural and other rulings Parties: Plaintiff: Kimberly Leach by her tutor Simon Leach Defendant: Delia Ann Harpur Representation: Counsel: Plaintiff: Mr A J Stone SC / Dr A Silink Defendant: Mr I D M Roberts SC