Bobb v Wombat Securities Pty Ltd

[2014] NSWCA 54

Court of Appeal

New South Wales

Case Title:

Bobb v Wombat Securities Pty Ltd

Medium Neutral Citation:

[2014] NSWCA 54

Hearing Date(s):

10 March 2014

Decision Date:

10 March 2014

Before:

Basten JA

Decision:

1. Stand the objection to competency over to a date to be fixed before a Full Court and stand over to the same date any motion by the appellant for an extension of time to file such summons as he may be advised under s 69 of the Supreme Court Act 1970.

2. Direct the Registrar to set the matters down for hearing for two hours as soon as convenient.

3. Give leave to the appellant to file an amended notice of appeal with the agreement of the respondent.

4. Leave to approach the Registrar to obtain a date for hearing of the motion or motions referred to in (1).

5. The costs of the proceedings this morning will be costs in the objection to competency motion.

[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 AND NEW TRIAL - competency of appeal - appeal from judgment of District Court determining an appeal against an assessment of costs under Legal Profession Act 2004 (NSW) - right of appeal from District Court extends only to an "action" - whether an appeal under Legal Profession Act is an "action" - District Court Act 1973 (NSW), s 127

PRACTICE AND PROCEDURE- judicial review - judgment of District Court - extension of time to file summons for judicial review - whether such proceedings would constitute an abuse of process - referral to Full Court - Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Legislation Cited:

District Court Act 1973 (NSW), s 127
Legal Profession Act 2004 (NSW), s 384
Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Muldoon v The Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282

Category:

Procedural and other rulings

Parties:

Richard Bobb (Appellant)
Wombat Securities Pty Ltd (Respondent)

Representation

- Counsel:

Counsel:

Mr M G Coffey (Solicitor) (Appellant)
Ms M Castle/Mr A Korakis (Respondent)

- Solicitors:

Solicitors:

Gells Lawyers (Appellant)
In Curia Pty Ltd (Respondent)

File Number(s):

CA 2013/326355

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Elkaim DCJ

- Date of Decision: 

03 October 2013

- Court File Number(s):

DC 2012/274475

JUDGMENT

1. BASTEN JA: The matter presently before the Court involves an objection to the competency of an appeal, the appeal being brought from a judgment of the District Court in relation to an assessment of costs. The right of appeal to the District Court arose under s 384 of the Legal Profession Act 2004 (NSW). There is an issue raised on the objection to competency as to whether there is a right of appeal under s 127 of the District Court Act 1973 (NSW) from a judgment of the District Court in those proceedings.

2. The respondent seeks to rely upon the judgment of this Court in Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 for the proposition that no appeal lies. Within that contention there is an issue as to whether an appeal under the Legal Profession Act constitutes "an action" in the District Court. As counsel appearing for the respondent conceded, there is no authority of this Court with respect to that specific legislation. There is a question to be determined, therefore, as to whether or not Muldoon has the effect of denying the appellant a right of appeal. It is possible that, should I take the view that Muldoon does apply, the appellant would seek to review the decision. There is also a possibility that the appellant would, in that circumstance, seek to review the judgment of the District Court in the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW).

3. Ms Castle for the respondent noted that there would need to be an extension of time within which to issue a summons seeking to invoke the Court's jurisdiction under s 69: Uniform Civil Procedure Rules 2005 (NSW), r 59.10. There is, she submitted, an issue as to whether such a summons has merit. There may be an issue as to whether the proceeding would constitute an abuse of process given the prior history of matters, both before Beech-Jones J in the Common Law Division and before the District Court. It is appropriate that all of these matters be addressed before the expenses involved in preparing a matter for final hearing are incurred. However, it is not desirable that there be multiple interlocutory hearings. Accordingly, I propose to stand the objection to competency over to a date to be fixed before a Full Court and to stand over to the same date any motion by the appellant for an extension of time within which to file such summons as he may be advised under s 69 of the Supreme Court Act.

4. I direct the Registrar to set the matters down for hearing as a two hour matter as soon as convenient. I note that the notice of appeal in its present form requires some minor amendment and to the extent necessary I give leave to the appellant to file an amended notice of appeal in terms which have the agreement of the respondent. The parties have leave to approach the Registrar to obtain a date for hearing.

5. The costs of the proceedings this morning will be costs in the objection to competency motion.

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