Chand v RailCorp - [2010] NSWCA 233

New South Wales

Court of Appeal

CITATION: Chand v RailCorp [2010] NSWCA 233

HEARING DATE(S): 6 September 2010

JUDGMENT OF: McColl JA at 1

EX TEMPORE JUDGMENT DATE: 6 September 2010

DECISION: 1. Extend the time in which the applicant may file her summons seeking leave to appeal from the decision of the Administrative Decisions Tribunal Appeal Panel of 2 March 2010 to and including 28 June 2010.
2. Dismiss the notice of motion filed by RailCorp on 12 July 2010.
3. Each party to bear her and its own costs of the two notices of motion.

CATCHWORDS: PROCEDURE– summons seeking leave filed out of time – extension of time for leave to appeal – explanation for delay – whether applicant has fairly arguable case - PROCEDURE – dismissal of summons seeking leave – failure to comply with rules – dictates of justice – Civil Procedure Act 2005 (NSW)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1977 (NSW)
Anti-Discrimination Act 1977 (NSW)
Civil Procedure Act 2005 (NSW)
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Bi v Mourad [2010] NSWCA 17
Chand v State Rail Authority [2007] NSWADT 90
Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
Chand v Rail Corporation of NSW (No 3) [2010] NSW ADTAP 11
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61

PARTIES: Bimla Chand - applicant
RaiCorp of NSW - respondent

FILE NUMBER(S): CA 2010/79611

COUNSEL: K T Nomchong - for the respondent

SOLICITORS: Applicant in person
Clayton Utz - for the respondent

LOWER COURT JURISDICTION: Administrative Decisions Tribunal

LOWER COURT FILE NUMBER(S): 079026

LOWER COURT JUDICIAL OFFICER: Appeal Panel

LOWER COURT DATE OF DECISION: 2 March 2010

LOWER COURT MEDIUM NEUTRAL CITATION: [2010] NSWADTAP 11

CA 2009/79611

McCOLL JA
6 September 2010

CHAND v RAILCORP

Judgment ex tempore

The Court is dealing with two notices of motion. The first in time was filed by RailCorp on 12 July 2010. It seeks an order that the applicant's summons seeking leave to appeal from a decision of the Administrative Decisions Tribunal Appeal Panel awarding RailCorp the costs of certain adjournments be struck out for failure to comply with Uniform Civil Procedure Rules 2005 (“UCPR”) 51.9: Chand v Rail Corporation of NSW (No 3) [2010] NSW ADTAP 11 (“the Costs Decision”). The second notice of motion filed by Ms Chand on 22 July 2010 seeks, in substance, an extension of time in which to file her summons seeking leave to appeal from what I have described as the Costs Decision.

Background

2 The Costs Decision was delivered on 2 March 2010, which was the material date. On 30 March 2010, twenty-eight days after the material date, Ms Chand filed a notice of intention to seek leave to appeal from that decision. On 28 June 2010, four months and six…

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 Chand v RailCorp

Details

AGLC: Chand v RailCorp [2010] NSWCA 233
Case: [2010] NSWCA 233
Decision Date: 6 September 2010

CaseChat Overview and Summary

In *Chand v RailCorp*, the applicant sought leave to appeal from a decision of the Administrative Decisions Tribunal Appeal Panel. The respondent, RailCorp, had filed a notice of motion seeking to dismiss the applicant's summons seeking leave to appeal, arguing it was filed out of time and without sufficient explanation for the delay.

The primary legal issue before McColl JA was whether to grant an extension of time for the applicant to file her summons seeking leave to appeal. This required consideration of whether the applicant had a fairly arguable case and whether the dictates of justice warranted an extension, notwithstanding the failure to comply with the relevant procedural rules.

McColl JA reasoned that while the applicant had not provided a comprehensive explanation for the delay, the merits of her proposed appeal were sufficiently arguable to justify granting an extension. The court applied the principles governing extensions of time for seeking leave to appeal, balancing the need for procedural compliance with the overarching requirement to act in accordance with the dictates of justice. Consequently, the court ordered that the time for filing the summons seeking leave to appeal be extended to 28 June 2010, and dismissed RailCorp's notice of motion. Each party was ordered to bear their own costs.

Orders

Orders of the court

1. Extend the time in which the applicant may file her summons seeking leave to appeal from the decision of the Administrative Decisions Tribunal Appeal Panel of 2 March 2010 to and including 28 June 2010.

2. Dismiss the notice of motion filed by RailCorp on 12 July 2010.

3. Each party to bear her and its own costs of the two notices of motion.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Chand v RailCorp [2010] NSWCA 233
HEARING DATE(S):	6 September 2010
JUDGMENT OF:	McColl JA at 1
EX TEMPORE JUDGMENT DATE:	6 September 2010
DECISION:	1. Extend the time in which the applicant may file her summons seeking leave to appeal from the decision of the Administrative Decisions Tribunal Appeal Panel of 2 March 2010 to and including 28 June 2010. 2. Dismiss the notice of motion filed by RailCorp on 12 July 2010. 3. Each party to bear her and its own costs of the two notices of motion.
CATCHWORDS:	PROCEDURE– summons seeking leave filed out of time – extension of time for leave to appeal – explanation for delay – whether applicant has fairly arguable case - PROCEDURE – dismissal of summons seeking leave – failure to comply with rules – dictates of justice – Civil Procedure Act 2005 (NSW)
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1977 (NSW) Anti-Discrimination Act 1977 (NSW) Civil Procedure Act 2005 (NSW) Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Bi v Mourad [2010] NSWCA 17 Chand v State Rail Authority [2007] NSWADT 90 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Chand v Rail Corporation of NSW (No 3) [2010] NSW ADTAP 11 Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61
PARTIES:	Bimla Chand - applicant RaiCorp of NSW - respondent
FILE NUMBER(S):	CA 2010/79611
COUNSEL:	K T Nomchong - for the respondent
SOLICITORS:	Applicant in person Clayton Utz - for the respondent
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	079026
LOWER COURT JUDICIAL OFFICER:	Appeal Panel
LOWER COURT DATE OF DECISION:	2 March 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	[2010] NSWADTAP 11