Curtis v Charles Darwin University

[2013] NSWSC 1558

Supreme Court

New South Wales

Medium Neutral Citation:

Curtis v Charles Darwin University [2013] NSWSC 1558

Hearing dates:

18/10/13

Decision date:

18 October 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

1. Direct the plaintiff to file a Notice of Motion seeking an extension of time to bring his appeal under r. 50.3 of the UCPR together with an affidavit in support of the motion within 14 days of the date hereof;

2. I direct that the motion be endorsed that it is to be made returnable on a date fixed for hearing of the appeal by my direction;

3. Direct the defendant to file any evidence in response within a further period of 7 days from the date of the service of the plaintiff affidavit;

4. Grant liberty to the parties to approach the listing manager today to obtain a date for hearing of the appeal;

5. Direct the parties to submit to my chambers a proposed timetable for any outstanding preparations;

6. If I am satisfied with the provisions they suggest I will make the orders in chambers;

7. The defendant's costs of today to be it's costs in the appeal;

8. Note that the plaintiff's application for a stay of the costs order below is withdrawn.

Catchwords:

PRACTICE AND PROCEDURE - application for leave to file a motion extending time to file a notice of appeal from a decision of the Local Court of New South Wales

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Local Court Act 2007 (NSW)

Category:

Procedural and other rulings

Parties:

John P. Curtis (plaintiff)
Charles Darwin University (defendant)

Representation:

Counsel:
In person (plaintiff)
CM Riorden, solicitor (defendant)
Solicitors:
In person (plaintiff)
Deloitte Touche Tohmatsu (defendant)

File Number(s):

2013/00286853

ex tempore Judgment

1. This is an appeal from the Local Court brought as of a right under the provisions of s 39 of the Local Court Act 2007 (NSW). The gravamen of the complaints of Mr Curtis, who is unrepresented, is that he was denied a fair hearing in the Local Court and that the Magistrate was biased but refused to recuse himself. It seems to me - and Mr Riorden, solicitor, who appears for the defendant seems to accept that - those matters, if made good, will constitute errors of law.

1. The Common Law Case Management Registrar referred the matter to me because the parties were in dispute about whether Mr Curtis's notice of appeal was in order. There is no doubt it was filed late, and in the grounds in support of the appeal Mr Curtis sets out a short explanation as to why he was late. Apparently when the matter was before the Registrar on 3rd October 2013 there was a dispute about the same matter, and a direction was made that Mr Curtis file an amended summons. Unfortunately, apparently it was not clear to Mr Curtis what the alleged defect was, and accordingly he did not comply.

1. The parties are in dispute today as to whether or not the Registrar directed, or perhaps suggested, the defendant should write to Mr Curtis and point out what it says the defect is. I must say so far as that is concerned there is no endorsement on the result sheet in the file of a direction to that effect. So I can only suppose that if the Registrar made a comment in that regard, it was by way of suggestion rather than order.

1. In any event, it did not happen. Mr Curtis was in the dark as to what he was to do. He tells me he took some advice about his document and based on that advice decided he did not have to do anything. That necessitated Mr Riorden having to reventilate the same point when the matter was before the Registrar today.

1. Before me Mr Riorden argued in substance that as there was no prayer for relief in the summons commencing the appeal seeking an extension of the time fixed by the rules for bringing it, the appeal was incompetent. With respect to Mr Riorden, I reject that argument.

1. It seems to me that an appeal commenced out of time in circumstances like these where the statute, which provides the right of appeal, does not circumscribe it by limiting the time by which it may be brought, filing the summons out of time is a mere irregularity and does not render the appeal incompetent. Moreover it is an irregularity that can be cured by the Court nunc pro tunc.

1. It seems to me given that this is a relatively confined argument about a sum which, in relative terms, is not a very large sum, the way to resolve this dispute is to direct Mr Curtis to file a motion seeking an extension of time together with an affidavit in support, which motion can be returnable upon the hearing of the appeal to the intent that the motion my be determined by the judge hearing the appeal.

1. The parties both agree that the matter is fairly confined and urge me to allow them to approach the listing manager to obtain a date for hearing. I would be surprised if the matter would take more than half a day in court. That proposal seems to me sensible subject to one thing. That is that the parties agree upon a timetable for taking any outstanding necessary steps to make the matter ready for hearing. Having heard from Mr Curtis and Mr Riorden I am confident they can sensibly work out a timetable in that regard, and I will allow them to forward their proposed timetable to me in chambers and if I am satisfied that it is appropriate I will make the orders without the need for any further appearance by either of them.

1. There is one final point. Mr Curtis was suing the university as defendant in the Local Court for an amount of something in excess of $14,000. He was unsuccessful. The judgment was entered for the defendant and the learned Magistrate assessed costs in the amount of about $5,600. Mr Curtis seeks a stay of that order. Given s 56 of the Civil Procedure Act I am prepared to deal with that application for a stay this morning despite the fact that no motion or affidavit was filed in respect of it.

1. Mr Riorden informs me that a writ of execution has issued, but as yet has not been enforced. I have indicated to Mr Curtis, and I understand he accepts, that his prospects of obtaining a stay are poor for the reasons advanced by Mr Riorden. The amount involved is small. There can be no doubt the university will be able to make restitution with interest if Mr Curtis wins his appeal. Mr Curtis very frankly says he cannot point to any other consideration which might suggest his appeal would be stultified if he was required to satisfy the costs order. In these circumstances I understood Mr Curtis to withdraw his application for a stay.

1. I wish to make it quite clear that in these circumstances, had he pressed it I would have decided the issue against him.

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Decision last updated: 25 October 2013