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Ahern v Aon Risk Services Australia Ltd

Ahern v Aon Risk Services Australia Ltd

Case [2022] NSWSC 702 30 May 2022

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Ahern v Aon Risk Services Australia Ltd [2022] NSWSC 702
Hearing dates: 11 May 2022
Date of orders: 30 May 2022
Decision date: 30 May 2022
Jurisdiction: Common Law
Before: Fagan J
Decision:
Plaintiffs’ amended summons dismissed with costs assessed in the global sum of $80,000.

Catchwords:
COSTS – leave to appeal under s 385 of the Legal Profession Act 2004 – appeal two years and seven months out of time – exhausted right of appeal under s 384 – delay not satisfactorily explained, excused or justified – summons dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW) (Repealed)
Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules

Cases Cited:
Ahern v Aon Risk Services Australia Limited [2020] NSWDC
Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406
Bobb v Wombat Securities Pty Ltd & [2013] NSWSC 757
Cassegrain v CTK Engineering [2008] NSWSC 457
Chapmans Ltd v Yandell [1999] NSWCA 361
Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jackamarra v Krakouer (1998) 195 CLR 516
Tomko v Palasty(No. 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145

Category: Procedural rulings
Parties: Marshall Ahern (plaintiff)
Aon Risk Services Australia Ltd (defendant)
Representation:
Counsel:
L McBride (plaintiff)
J McDonald (defendant)
Solicitors:
Fraser Clancy Lawyers (plaintiff)
James Tuite & Associates (defendant)

File Number(s): 2021/002699663
Publication restriction: No

Judgment

Before the Court is a notice of motion filed by the first defendant seeking orders that the plaintiffs’ summons be dismissed or set aside and other relief. The first three paragraphs of the relief claimed are as follows:

1 Pursuant to UCPR [Uniform Civil Procedure Rules] 12.11(1)(a) the Plaintiffs’ Summons filed on 21 September 2021 be set aside having been filed out of time.
2 In the alternative to Order 1, that the proceedings be dismissed pursuant to UCPR 13.4(1)(a), (b) and (c) and, to the extent the Plaintiffs’ Summons filed on 21 September 2021 is a “Summons Commencing an Appeal”, pursuant to UCPR 50.16A on the basis that the appeal is incompetent as the Summons has been filed out of time and leave to appeal is required.
3 In the alternative to Orders 1 and 2, the Plaintiffs’ Summons filed on 21 September 2021 be struck out pursuant to UCPR 14.28(1)(a), (b) and (c).

Orders 1-3 are related and will be considered first. Paragraphs 4 and 5 of the relief claimed in the notice of motion concern separate aspects of the proceedings. Consideration of those orders will be deferred until later in these reasons. The first defendant seeks its costs of the notice of motion and of the proceedings generally,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahern v Aon Risk Services Australia Ltd

Details

AGLC: Ahern v Aon Risk Services Australia Ltd [2022] NSWSC 702
Case: [2022] NSWSC 702
Decision Date: 30 May 2022

CaseChat Overview and Summary

In the matter of Ahern v Aon Risk Services Australia Ltd, the court was presented with a dispute concerning the dismissal of the applicant’s appeal due to its untimeliness. The applicant, Ahern, sought leave to appeal a decision that had dismissed his appeal as being outside the statutory time limit. The case was heard in the Supreme Court of Victoria, where the primary issue was whether the applicant had grounds to appeal the decision under section 385 of the Legal Profession Act 2004. The appeal was two years and seven months out of time, and the applicant had already exhausted the right of appeal under section 384. The central legal issue was whether the delay in filing the appeal was satisfactorily explained, excused, or justified.

The court examined the delay in filing the appeal and assessed whether the applicant could provide a satisfactory explanation for the delay. The court found that the applicant did not provide a satisfactory explanation for the delay. The applicant also failed to show that the delay was excusable or justified. The court emphasised that the delay was substantial and that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of the time limit. The court noted that the statutory time limits are fundamental to the administration of justice and that they must be strictly adhered to unless there are compelling reasons to the contrary.

The Supreme Court dismissed the summons for leave to appeal, affirming that the applicant's delay in filing the appeal was neither satisfactorily explained, excused, nor justified. The court held that the applicant had exhausted his rights to appeal under the Legal Profession Act and that the delay was too significant to warrant any extension of time. As a result, the applicant's application for leave to appeal was denied.

Orders