CITATION: Bamforth v Betcke & Ors [2003] NSWCA 116 HEARING DATE(S): 1 May 2003 JUDGMENT DATE:
15 May 2003JUDGMENT OF: Mason P at 1; Giles JA at 2; Santow J at 70 DECISION: (1) In each of proceedings 40023/02, 40024/02, 40027/02 and 40028/02, appeal dismissed with costs. (2) In Pyojed's application: (a) Extend the time for applying for leave to apeal up to and including 1 May 2003; (b) Grant leave to appeal, limited to the question of whether the discretion to reinstate the proceedings was properly exercised in all the circumstances, including the evidence or lack of it, explaining and justifying the cumulative delays, and direct that the notice of appeal be filed within seven days; (c) Appeal dismissed with costs. CATCHWORDS: Proceedings in District Court - orders that particulars be provided - failures to provide particulars - dismissal orders under Pt 18 r 3 of the rules - preliminary dismissal orders open to be set aside under Pt 1 r 7A(5) - applications made but after the 28 day period in the rule - orders made - appeals by leave by two defendants - cross-defendant made late application seeking to appeal - standing of cross-defendant - whether should be permitted to appeal - should be permitted because would not put plaintiffs further at risk - whether time properly extended - whether orders setting aside dismissal orders properly made - discussion of significance in application under Pt 1 r 7A(5) of explanation excusing the original failures - and in application for extension of time - held error not shown in exercises of discretion. D CASES CITED: Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 6;
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389;
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268;
Ho v Powell (2001) 51 NSWLR 572;
House v The King (1936) 55 CLR 499;
Insurance Exchange of Australasia v Dooley (2000) 50 NSWLR 222;
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274;
National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315.
Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd (1990)20 NSWLR 221;PARTIES :
Ronald Barlow Bamforth v Violet Ann Betcke, Pyojed Pty Ltd and Peter Morris
Ronald Barlow Bamforth v Raylene Betcke, Pyojed Pty Ltd and Peter Morris
Peter Morris v Violet Ann Betcke, Pyojed Pty Ltd and Ronald Barlow Bamforth
Peter Morris v Raylene Betcke, Pyojed Pty Ltd and Ronald Barlow BamforthFILE NUMBER(S): CA 40023/02; 40024/02; 40027/02; 40028/02 COUNSEL: I Faulkner SC - Ronald Barlow Bamforth
G Miller QC - Peter Morris
L King SC & P Regattieri - Raylene Betcke
C Evatt QC & A Canceri - Violet Ann Betcke
R A Pepper - Pyojed Pty LtdSOLICITORS: Harris Wheeler Lawyers, Newcastle - Ronald Barlow Bamforth
Riley Gray-Spencer Lawyers - Peter Morris
Peacocke, Dickens & Price, Dubbo - Raylene Betcke
Andrew Fegent & Co -…
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Details
- Case
- [2003] NSWCA 116
- Decision Date
CaseChat Overview and Summary
In *Bamforth v Betcke*, the Court of Appeal of New South Wales considered appeals by two defendants against District Court orders that had set aside earlier orders dismissing their proceedings for failure to provide particulars. A cross-defendant also sought leave to appeal out of time. The central dispute concerned the District Court's exercise of discretion under rule 7A(5) of Part 1 of the Uniform Civil Procedure Rules 1999 (NSW) to set aside preliminary dismissal orders made under rule 3 of Part 18.
The legal issues before the Court of Appeal included whether the District Court judge had erred in setting aside the dismissal orders, particularly in relation to the applications made after the 28-day period stipulated in rule 7A(5). The court also had to determine the standing of the cross-defendant to appeal and whether to grant an extension of time for its application. A key consideration was the significance of an explanation excusing the original failures to provide particulars, both in the application to set aside the dismissal orders and in an application for an extension of time.
The Court of Appeal held that no error had been shown in the District Court judge's exercise of discretion. The court found that the judge had properly considered the relevant factors in setting aside the dismissal orders and in granting the cross-defendant leave to appeal out of time, noting that this would not place the plaintiffs at further risk. The court also determined that the judge had not erred in extending the time for the applications.
Consequently, the appeals by the two defendants were dismissed with costs. In relation to the cross-defendant's application, the Court of Appeal extended the time for applying for leave to appeal, granted leave limited to the question of whether the discretion to reinstate the proceedings was properly exercised, and ordered that the appeal be dismissed with costs.
The legal issues before the Court of Appeal included whether the District Court judge had erred in setting aside the dismissal orders, particularly in relation to the applications made after the 28-day period stipulated in rule 7A(5). The court also had to determine the standing of the cross-defendant to appeal and whether to grant an extension of time for its application. A key consideration was the significance of an explanation excusing the original failures to provide particulars, both in the application to set aside the dismissal orders and in an application for an extension of time.
The Court of Appeal held that no error had been shown in the District Court judge's exercise of discretion. The court found that the judge had properly considered the relevant factors in setting aside the dismissal orders and in granting the cross-defendant leave to appeal out of time, noting that this would not place the plaintiffs at further risk. The court also determined that the judge had not erred in extending the time for the applications.
Consequently, the appeals by the two defendants were dismissed with costs. In relation to the cross-defendant's application, the Court of Appeal extended the time for applying for leave to appeal, granted leave limited to the question of whether the discretion to reinstate the proceedings was properly exercised, and ordered that the appeal be dismissed with costs.
Orders
Orders of the court
(1) In each of proceedings 40023/02, 40024/02, 40027/02 and 40028/02, appeal dismissed with costs. (2) In Pyojed's application: (a) Extend the time for applying for leave to apeal up to and including 1 May 2003; (b) Grant leave to appeal, limited to the question of whether the discretion to reinstate the proceedings was properly exercised in all the circumstances, including the evidence or lack of it, explaining and justifying the cumulative delays, and direct that the notice of appeal be filed within seven days; (c) Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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