1. Grant leave to extend the time for filing of the applicant's Summons Seeking Leave to Appeal to 29 January 2013.
2. Dismiss applicant's Summons Seeking Leave to Appeal 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:
PROCEDURE - whether extension of time to file summons seeking leave to appeal should be granted - whether leave to appeal should be granted from summary dismissal of proceedings - whether question of principle, public importance or circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment the subject of the leave application going beyond what is merely arguable - where applicant seeking to re-agitate issues already determined in other proceedings relating to refusal of leave to withdraw guilty plea
Marion Louise Collier (Applicant) Constable Kate Lancer (First Respondent) Local Court of New South Wales (Second Respondent) Magistrate Jan Stevenson (Third Respondent)
Representation:
Solicitors: I V Knight, Crown Solicitor (First Respondent) Counsel: Mrs Collier (self represented) Ms Baker (solicitor advocate for First Respondent)
THE COURT: This is an application by Mrs Collier for leave to appeal from…
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.
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Details
AGLC
Collier v Lancer (No 2) [2013] NSWCA 186
Case
[2013] NSWCA 186
Decision Date
CaseChat Overview and Summary
In *Collier v Lancer (No 2)*, the applicant sought leave to appeal from a summary dismissal of proceedings. The dispute concerned the applicant's attempt to re-agitate issues previously determined in other proceedings, specifically relating to the refusal of leave to withdraw a guilty plea. The matter was heard by Ward and Leeming JJA in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether an extension of time should be granted to file the summons seeking leave to appeal, and whether leave to appeal should be granted from the summary dismissal. The Court was required to consider whether the case involved a question of principle, public importance, or circumstances where an injustice had demonstrably occurred due to an error in the judgment, beyond mere arguability.
The Court reasoned that the applicant was seeking to re-litigate matters that had already been decided. Applying the principles governing applications for leave to appeal, particularly concerning the threshold for demonstrating an arguable case of error or injustice, the Court found that the applicant had not met the necessary criteria. While the Court granted an extension of time to file the summons, it ultimately dismissed the summons seeking leave to appeal.
Orders
Orders of the court
1. Grant leave to extend the time for filing of the applicant's Summons Seeking Leave to Appeal to 29 January 2013.
2. Dismiss applicant's Summons Seeking Leave to Appeal 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.]