Bauskis v Wainhouse - [2020] NSWCA 17

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bauskis v Wainhouse & Ors [2020] NSWCA 17
Hearing dates: 17 February 2020
Date of orders: 20 February 2020
Decision date: 20 February 2020
Before: Macfarlan JA, Payne JA
Decision:
Application for leave to appeal dismissed with costs.

Catchwords: CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal – application refused – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), s 57
Companion Animals Act 1998 (NSW), ss 16, 18, 69A
Supreme Court Procedure Act 1900 (NSW)
Uniform Civil Procedure Rules (NSW), r 51.10
Cases Cited: Collier v Lancer (No 2) [2013] NSWCA 186
Duraisamy v Sydney Trains [2019] NSWCA 269
K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528
Meads v Meads, 2012 ABQB 571
R v the Magistrates of Sydney [1824] NSWKR 3; [1824] NSWSupC 20
The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Wichman v Pepper Finance Corporation Limited (No 2) [2019] NSWCA 296
Category: Principal judgment
Parties: John Peter Bauskis (Applicant)
Rob Wainhouse (First respondent)
Mohammed Dannaoui (Second respondent)
Fairfield City Council (Third respondent)
State of New South Wales (Fourth respondent)
Representation:
Applicant (Self-represented)
Counsel:
D Kelly (First to third respondents)
R Coffey (Fourth respondent)
Solicitors:
Gillis Delaney Lawyers (First to third respondents)
Crown Solicitor’s Office (Fourth respondent)

File Number(s): 2019/287059
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

23 August 2018

Before:

Olsson SC DCJ

File Number(s):

2018/35896

Judgment

THE COURT: This is an application for leave to appeal from orders made by Olsson SC DCJ on 23 August 2018 in the District Court dismissing an amended statement of claim filed by Mr Bauskis on 16 May 2018.

Brief facts

The amended statement of claim related to the seizure of a red cattle dog named “Duke” by officers of Fairfield Council from the backyard of Mr Bauskis’ residential property.
The amended statement of claim made allegations of trespass to property and goods, conversion of a chattel (“Duke”) and sought the return of Duke together with damages. The parties sued were Fairfield Council, two of its officers who effected the seizure of “Duke”, and the State of New South Wales as the entity responsible for the police officers who attended the scene when Mr Bauskis refused the Council officers access to his property.
On 14 June 2018, the first to third respondents (Fairfield Council and two of its officers) filed a notice of motion in the proceedings below seeking the following orders:

“1. The proceedings be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005.
2. The Statement of Claim be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005.
3. The plaintiff pay the first, second and third defendants’ costs of the Notice of Motion.
4. The plaintiff pay the first, second and third defendants’ costs…

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 Bauskis v Wainhouse

Details

AGLC: Bauskis v Wainhouse [2020] NSWCA 17
Case: [2020] NSWCA 17
Decision Date: 20 February 2020

CaseChat Overview and Summary

The applicants, Bauskis and Wainhouse, sought an extension of time to file a summons seeking leave to appeal. The application was heard by Macfarlan and Payne JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court was whether to grant an extension of time for the applicants to file their summons seeking leave to appeal. This required the Court to consider the merits of the proposed appeal and whether there was a sufficient reason to depart from the usual time limits.

The Court determined that there was no issue of principle raised by the proposed appeal that would warrant granting an extension of time. Consequently, the application for leave to appeal was dismissed. The applicants were ordered to pay the costs of the application.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bauskis v Wainhouse & Ors [2020] NSWCA 17
Hearing dates:	17 February 2020
Date of orders:	20 February 2020
Decision date:	20 February 2020
Before:	Macfarlan JA, Payne JA
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal – application refused – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 57 Companion Animals Act 1998 (NSW), ss 16, 18, 69A Supreme Court Procedure Act 1900 (NSW) Uniform Civil Procedure Rules (NSW), r 51.10
Cases Cited:	Collier v Lancer (No 2) [2013] NSWCA 186 Duraisamy v Sydney Trains [2019] NSWCA 269 K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 Meads v Meads, 2012 ABQB 571 R v the Magistrates of Sydney [1824] NSWKR 3; [1824] NSWSupC 20 The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Wichman v Pepper Finance Corporation Limited (No 2) [2019] NSWCA 296
Category:	Principal judgment
Parties:	John Peter Bauskis (Applicant) Rob Wainhouse (First respondent) Mohammed Dannaoui (Second respondent) Fairfield City Council (Third respondent) State of New South Wales (Fourth respondent)
Representation:	Applicant (Self-represented) Counsel: D Kelly (First to third respondents) R Coffey (Fourth respondent) Solicitors: Gillis Delaney Lawyers (First to third respondents) Crown Solicitor’s Office (Fourth respondent)
File Number(s):	2019/287059
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 23 August 2018 Before: Olsson SC DCJ File Number(s): 2018/35896