Smith v Shilkin [2018] NSWSC 1582

Supreme Court New South Wales

Medium Neutral Citation: Smith v Shilkin [2018] NSWSC 1582 Hearing dates: 19 October 2018 Date of orders: 19 October 2018 Decision date: 19 October 2018 Jurisdiction: Equity Before: Slattery J Decision: Permanent stay granted against the plaintiffs' pursuit of the earlier proceedings against the defendants. No other motions determined in the earlier proceedings before stay imposed. Costs of earlier proceedings and the motion in the current proceedings reserved until after the hearing of the current proceedings. No declaration made under Uniform Civil Procedure Rules 2005, r 12.11(1)(c) that originating process not served on defendant, as that is admitted. Other procedural orders made. Catchwords: PRACTICE AND PROCEDURE – the same plaintiffs bring two sets of proceedings against the same defendants – proceedings are prima facie vexatious – plaintiffs agree to stay of the earlier proceedings – whether any determinations should take place in the first proceedings before the stay is imposed.

DECLARATIONS – issues as to whether one of the defendants has been served in the earlier proceedings – admission made by the plaintiffs that he was not served – whether a declaration he was not served should be made.

LOCUS STANDI – whether unserved defendants have a right of appearance on applications to extend time for service process. Legislation Cited: Civil Procedure Act 2005 Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005, r 12.11(1)(c) Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Henry v Henry (1996) 185 CLR 571 Moore & Ors v Inglis (1976) 50 ALJR 589 Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320 Weston in Capacity as Special Purpose Liquidator of One. Tel Ltd (In Liquidation) v Publishing and Broadcasting Limited (2012) 88 ACSR 80 Category: Procedural and other rulings Parties: Alexander Noel Smith (first plaintiff) Adam Poche (second plaintiff) Melissa Poche (third plaintiff) Aidan Conrecode (fourth plaintiff) Catherine Walsh (fifth plaintiff) Steven Andrew Shilkin (first defendant) Ashley Shilkin (second defendant) Representation: Counsel: C.E. Bannan (plaintiffs) R.W. Douglas (defendants)