Betteridge v Wurth

[2014] NSWCA 435

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Betteridge v Wurth [2014] NSWCA 435

Hearing dates:

8 December 2014

Decision date:

08 December 2014

Before:

Emmett JA at [1], [16];
Leeming JA at [2]

Decision:

The application for leave is dismissed, with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application of leave to appeal from grant of leave to discontinue - no question of principle - leave refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 60
Evidence Act 1995 (NSW), s 91
Legal Profession Act 2004 (NSW), ss 323(3), 327
Limitation Act 1969 (NSW)
Supreme Court Act 1970 (NSW), s 101(2)

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Moon v Mun [2013] NSWCA 217

Category:

Interlocutory applications

Parties:

Neville Betteridge (Applicant)
Mark Wurth (Respondent)

Representation:

Counsel:
PR Glissan (Applicant)
D Weinberger (Respondent)
Solicitors:
McGowan Lawyers (Applicant)
Karp O'Neill Solicitors & Barristers (Respondent)

File Number(s):

2014/208352

 Decision under appeal 

Citation:

[2014] NSWSC 793

Date of Decision:

2014-06-17 00:00:00

Before:

Harrison J

File Number(s):

2011/405907

Judgment

1. EMMETT JA: I invite Leeming JA to give the first judgment.

1. LEEMING JA: This is an application for leave to appeal against the grant of leave to the respondent to discontinue proceedings brought by him with no order as to costs. The application was made to the primary judge, sitting as Common Law duty judge, on Thursday 13 June 2014. His Honour reserved, delivering judgment the following Monday. Leave is required, first, because the subject matter is confined to costs, secondly, because the judgment was interlocutory, and thirdly, because the amount in issue is (considerably) less than $100,000: Supreme Court Act 1970 (NSW), s 101(2)(c), (e) and (r). The costs in issue are, we have been told, in the vicinity of $18,000.

1. The applicant for leave has insisted upon an oral hearing; the respondent consented to the application being dealt with on the papers.

1. The respondent (as plaintiff) commenced proceedings against the applicant (as first defendant) claiming that as a high school student in 1970 and 1971 he was sexually assaulted by the first defendant more than four decades ago. The first defendant, to a significant extent, admitted those sexual assaults. He also admitted that he had later pleaded guilty to charges arising from those assaults.

1. The plaintiff also sued two other teachers and entities associated with the Anglican Church. The proceedings were finalised by consent, following a mediation, in respect of all defendants other than the first defendant, in March 2014. Judgment was entered for the second, fourth and fifth defendants, with no…