Crossan v Utmission Pty Limited

[2010] NSWCA 96

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Crossan v Utmission Pty Limited [2010] NSWCA 96

FILE NUMBER(S):
2009/298465

HEARING DATE(S):
3 May 2010

JUDGMENT DATE:
3 May 2010

EX TEMPORE DATE:
3 May 2010

PARTIES:
Mathew Gordon Crossan (1st Appellant)
Sharon Gail Crossan (2nd Appellant)
Utmission Pty Limited (Respondent)

JUDGMENT OF:
Allsop P     

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
1411/2008

LOWER COURT JUDICIAL OFFICER:
Levy SC DCJ

LOWER COURT DATE OF DECISION:
29 May 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Utmission Pty Ltd v Crossan [209] NSWDC 15

COUNSEL:
Self-represented (Appellants)
Ms C Gleeson (Respondent)

SOLICITORS:
Self-represented (Appellants)
Staunton & Thompson Lawyers (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW)

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:

1. Extend time for the filing of the summons for leave to cross-appeal to 29 April 2010.

2. Order that the Notice of Cross-Appeal be treated as a draft Notice of Cross-Appeal provided to the Court.

3. Order that the summons for leave to cross-appeal and the cross-appeal should leave be granted be heard concurrently with the appeal.

4. Grant leave to approach the Registrar for any further directions in the preparation of the appeal, summons for leave to cross-appeal and cross-appeal.

5. Costs of today be costs in the summons for leave to cross-appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298465

ALLSOP P

Monday 3 May 2010

MATHEW GORDON CROSSAN  v  UTMISSION PTY LIMITED

Judgment

1. ALLSOP P:  In this matter the contending motions before the Court can be summarised as to what should occur procedurally in the light of orders that were made by two judges of the Court on 9 November 2009, and the failure by the appellant to comply strictly with the orders that were made.

2. On 9 November 2009 orders were made granting leave to file a summons to cross appeal within seven days. What the evidence discloses, one can infer, was a mistake by the appellant.  A Notice of Cross-Appeal was filed as though leave had been given. In fact, leave had not been given. What had been given was a time in which a summons for leave to cross appeal was to be filed. Nevertheless the Notice of Cross-Appeal gave the grounds of that cross appeal.

3. The position was sought to be rectified by filing, without leave, a summons for leave to cross appeal on 29 April 2010. In the meantime, documents in the proceeding have been titled "cross appellant" and "cross respondents" wrongly.

4. I made the suggestion this morning that to avoid unnecessary expense in collateral litigation about things that did not matter, the parties could address me on a proposed set of orders to do the following: (1) extend time for the filing of the summons for leave to cross appeal to 29 April 2010; (2) to order that the Notice of the Cross-Appeal currently on the Court's file be treated only as the provision of a draft Notice of Cross-Appeal; and (3) order that the summons for leave to cross-appeal and the cross-appeal should leave be granted, be heard concurrently with the appeal. Those suggested orders were opposed by Mr Crossan who indicated that because the matter was out of time by some months, the appellant should lose its right for leave to cross-appeal granted on 9 November. I think in the circumstances of the apparent mistake that has been made, the respondent should not lose its right to seek leave to cross-appeal and in my view the orders that I propose should be made.

5. I will also grant the parties leave to approach the Registrar for any further interlocutory steps.

6. However, the parties should be clear that whether represented or not, they each have a legal obligation under the Civil Procedure Act 2005 (NSW) to communicate with each other to remove unnecessary disputes about matters that are not truly legitimately in dispute. The parties should approach the balance of the resolution of their dispute with their eyes firmly on the proposition that the Court is here to resolve what actually is the dispute between the parties, and in that respect what are unnecessary or collateral and expensive side issues should be avoided if at all possible. Costs orders will be made in due course to reflect those obligations on the parties that are found in ss 56 to 60 of the Civil Procedure Act.  As for the costs of today, the costs of today will be costs in the summons for leave to cross appeal.

7. Therefore, the orders of the Court are:

1.Extend time for the filing of the summons for leave to cross-appeal to 29 April 2010.

2.Order that the Notice of Cross-Appeal be treated as a draft Notice of Cross-Appeal provided to the Court.

3.Order that the summons for leave to cross-appeal and the cross-appeal should leave be granted be heard concurrently with the appeal.

4.Grant leave to approach the Registrar for any further directions in the preparation of the appeal, summons for leave to cross-appeal and cross-appeal.

5.          Costs of today be costs in the summons for leave to cross-appeal.

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LAST UPDATED:
11 May 2010