Morrison v Daisey. The New South Wales Bar Association - Professional Development Department. Document 91 - Page 1 of 15

Transcription

1 Morrison v Daisey Document 91 - Page 1 of 15

2 In the District Court Of New South Wales Sydney Registry No of DATE Between Mervyn Morrison Plaintiff And Daisey s Take Away Food Defendant Short Minutes of Order Short Minutes Of Order Date Coram; Plaintiff/Respondent: Defendant/Applicant; Order: 1. That on or before DATE the plaintiff, by letter, serve upon the defendant the particulars of his claim as requested by the defendant in letters from the defendant's solicitors to the plaintiff's former solicitors. 2. That the plaintiff submit himself to a medical examination by a medical expert qualified for that purpose by the defendant. 3. That the costs of this application be the defendant's costs in the action. Hilton and Hilton Solicitors 180 Phillip Street Sydney NSW DX 397 Sydney Tel: Judge Document 91 - Page 2 of 15

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4 In the District Court of New South Wales Sydney Registry No of DATE Between Mervyn Morrison Plaintiff And Daisey s Take Away Food Defendant Observations Counsel's instructing solicitors act for the plaintiff Mervyn Morrison. We have only recently been instructed in this matter. It appears that the matter has had a very unfortunate history for a variety of reasons. Firstly Mr. Morrison is unfamiliar with the legal process and has at times been confused with overly legalistic and technical letters which have been sent to him by his previous lawyers. In addition, it appears that the lawyers have been far from diligent in the management of the proceedings. However, we now have clear instructions from the plaintiff to prosecute the proceedings with all due haste. Accordingly, we are undertaking the task of replying to the request for particulars and otherwise preparing the matter for hearing. Brief to appear for the Plaintiff Would you please appear on the notice of motion to oppose the application to strike the proceedings out for want of prosecution. The writer has sworn an affidavit, a copy of which is enclosed. Hilton and Hilton Solicitors 180 Phillip Street Sydney NSW DX 397 Sydney Tel: Document 91 - Page 4 of 15

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7 In the District Court Of New South Wales Sydney Registry No of DATE Between Mervyn Morrison Plaintiff And Notice of Motion The defendant will at 9.30 am on DATE at Level 13, John Maddison Tower, 90 Goulburn Street, Sydney, will move the Court for orders that: 1. Pursuant to Pt 18 r 3(1), an order for the statement of claim be struck out for want of prosecution. 2. Costs. Filed: DATE Daisey s Take Away Food Defendant A Berenson Solicitor for the Defendant Notice of Motion Berenson & Associates Solicitors 180 Phillip Street SYDNEY DX 397 SYDNEY Tel: Document 91 - Page 7 of 15

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10 In the District Court Of New South Wales Sydney Registry No of DATE Between Mervyn Morrison Plaintiff And Daisey s Take Away Food Defendant Affidavit Affidavit On DATE, I DAMIEN LAWRENCE of Sydney, in the State of New South Wales, solicitor, say on oath: 1. I am the partner in the firm of Hilton & Hilton and I have the carriage and control of this matter on behalf of the plaintiff. 2. I received instructions from the plaintiff last Friday to take over the carriage of this matter. As at the date of swearing this affidavit, I have not received from the plaintiff's former solicitors their file relating to this action. 3. The plaintiff has instructed me to take all necessary steps to prepare the matter for hearing as soon as possible. 4. To that end, as soon as I have received the file from the plaintiff's former solicitors, I will obtain instructions from the plaintiff to answer the defendant's request for particulars and will arrange medical appointments for the plaintiff. 5. The plaintiff instructs me that he is anxious for the matter to proceed. 6. The plaintiff also instructs me that in the past he has had difficulty with understanding letters from his solicitors and further that his solicitors have not always carried out his instructions. Sworn by the deponent at Sydney Hilton and Hilton Solicitors 180 Phillip Street Sydney NSW DX 397 Sydney Tel: Damien Lawrence before me: M Williams Solicitor/Justice of the Peace Document 91 - Page 10 of 15

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12 In the District Court Of New South Wales Sydney Registry Observations No of DATE Between Mervyn Morrison Plaintiff And Daisey s Take Away Food Defendant Counsel's instructing solicitors act for the defendant in these proceedings. The plaintiff has been unbelievably dilatory in prosecuting these proceedings and so we have now moved to have the Statement of claim struck out. Would counsel please appear on the motion. Counsel will be familiar with the relevant law relating to such applications. We regret that we cannot provide counsel with a copy of the statement of claim but the file has been in our offices so long that the document seems to have been misplaced. However, we have provided you with a supporting affidavit. Brief to Appear for the Defendant Berenson & Associates Solicitors 180 Phillip Street SYDNEY DX 397 SYDNEY Tel: Document 91 - Page 12 of 15

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14 In the District Court Of New South Wales Sydney Registry No of DATE Between Mervyn Morrison Plaintiff And Daisey s Take Away Food Defendant Affidavit On DATE, I ADAM BERENSON of Sydney, in the State of New South Wales, solicitor, say on oath: 1. I am the solicitor for the defendant. 2. These proceedings were commenced 6 years ago and concern an accident in which the plaintiff alleged the defendant was negligent some 10 years ago. 3. The plaintiff claims that he was entering the defendant's premises when he slipped and fell on a slippery substance and sustained injury. 4. After being served with the Statement of claim approximately 4 years ago, I requested particulars from the plaintiff. 5. On three further occasions I again requested particulars. Affidavit 6. To date, these particulars have not been supplied. 7. I arranged for the plaintiff to attend a medical examination on three separate occasions and on each occasion the plaintiff failed to attend. 8. The plaintiff has had three changes of solicitors during the time the proceedings have been running. 9. I have given the plaintiff notice by letter two months ago of my intention to bring these proceedings to strike out the Statement of claim. 10. The limitation period for the plaintiff's action expired 6 years after the date of the alleged accident. Berenson & Associates Solicitors 11. The defendant has informed me that he has a witness to the accident who would Document 91 - Page 14 of 15

15 180 Phillip Street SYDNEY DX 397 SYDNEY Tel: assist by giving an account on which the plaintiff may not succeed. He tells me that this witness now resides in Western Australia and he may not be able to find him because of the lapse of time since the accident occurred. 12. I ask that the Statement of claim be struck-out for want of prosecution. Sworn by the deponent at Sydney Adam Berenson before me: J Berenson Solicitor/Justice of the Peace Document 91 - Page 15 of 15