[2018] NSWSC 863

Marshall v Woodhouse

Directions made: (1) Schedule A to the proposed statement of claim should be provided by the plaintiff to the first and third defendants within 14 days. (2) Answers to a November 2017 request for particulars should be provided by the plaintiff, on or before 21 June 2018. (3) The parties are to confer in relation to the issue raised about paragraph 36 of the proposed statement of claim. If there is any dispute about the terms of the further amended statement of claim remaining following those discussions, a further motion should be put on, on or before 21 June 2018. (4) The defendant is to file any defence or motion to dismiss the proceedings, on or before 12 July 2018. (5) The matter is listed for further directions at 9.30am on 17 July 2018.

Catchwords

PRACTICE AND PROCEDURE – leave granted to file a notice of discontinuance – proceedings against the State settled – notice of motion – leave to file an amended statement of claim – directions made

Cases cited

Marshall v Commissioner of Police (Supreme Court (NSW), Lonergan J, 1 May 2017, unrep)

Legislation cited

Uniform Civil Procedure Rules 2005 (NSW)

Judgment

[1]
HER HONOUR: These proceedings were commenced by Mr Marshall in May 2017. By statement of claim filed in Court in December 2017 he pursued claims against five defendants including the Commissioner of Police, in relation to property including motor vehicles, plant and equipment used for beekeeping and horses.
[2]
Mr Marshall claimed he had agreed with Mr and Mrs Woodhouse that it would be stored at their rural property while he was incarcerated between April 2011 and September 2013, when it would be returned to him. He claimed that much of the property was not returned despite demands which he made for its return. Mr Marshall claimed damages in respect of the property and against the Commissioner of Police, he advanced allegations of malice and negligence. The State of New South Wales was later named as the fifth defendant, in place of the Commissioner of Police.
[3]
In May 2017, Lonergan J made orders referring Mr Marshall for pro bono legal assistance under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW): Marshall v Commissioner of Police (Supreme Court (NSW), Lonergan J, 1 May 2017, unrep).
[4]
By motion filed on 3 May, supported by an affidavit sworn by Mr Marshall's solicitor, Mr Pope, on 1 May, leave was sought to proceed on an amended statement of claim, Mr Marshall wishing to discontinue the proceedings against the State. The damages he there seeks to pursue against the other defendants are brought in bailment, negligence, conversion and detention of goods and the tort of intimidation.
[5]
Today, leave has been given to Mr Marshall to file a notice of discontinuance, the proceedings brought against the State having been settled and the parties being in the process of executing a deed.
[6]
There was no appearance for the second defendant who has not been served.
[7]
The first and third defendants did not oppose leave to file an amended statement of claim being granted, but it is common ground that there will need to be some further amendments made to the statement of claim annexed to the affidavit sworn by Mr Pope.
[8]
Accordingly, I have made the following directions:
1. (1)
  Schedule A to the proposed statement of claim should be provided by the plaintiff to the first and third defendants within 14 days.
2. (2)
  Answers to a November 2017 request for particulars should be provided by the plaintiff, on or before 21 June 2018.
3. (3)
  The parties are to confer in relation to the issue raised about paragraph 36 of the proposed statement of claim. If there is any dispute about the terms of the further amended statement of claim remaining following those discussions, a further motion should be put on, on or before 21 June 2018.
4. (4)
  The defendant is to file any defence or motion to dismiss the proceedings, on or before 12 July 2018.
5. (5)
  The matter is listed for further directions at 9.30am on 17 July 2018.