de Groot v Nominal Defendant

Case [2004] NSWCA 88
CITATION: Daniel Rory de Groot (an infant by his tutor Arlena Van Oosten) v The Nominal Defendant [2004] NSWCA 88
HEARING DATE(S): 27 October 2003
JUDGMENT DATE:
26 March 2004
JUDGMENT OF: Handley JA at 1
DECISION: 1. Claims 1, 2, 3 and 4 in the notice of motion of 16 July 2003 dismissed.; 2. Notice of appeal with appointment filed on 27 March 2003 struck out.; 3. Leave to file and serve a further notice of appeal within 28 days.; 4. Claim 6 in the notice of motion dismissed.; 5. No order as to the costs of the motion.; 6. Notice of motion stood over to 16 April 2004 at 9.30 am to enable directions to be given for the further hearing of these proceedings on the issues raised under SCR Pt 52A rr 43 and 43A.
CATCHWORDS: APPEAL - competency - appealable amount - plaintiff claiming increased damages of appealable amount - appeal competent - APPEAL - practice - prolix notice of appeal - struck out - APPEAL - practice - notice of appeal alleging actual bias of trial judge - grounds expressed in scandalous terms - filed without express instructions of appellant - struck out - APPEAL - practice - security for costs of appeal - personal injury case - appellant impecunious - no order for security for costs of appeal - COURTS and JUDGES - actual bias - not to be alleged without express instructions - D
LEGISLATION CITED: Supreme Court Rules 1970
CASES CITED: Clyne v NSW Bar Association (1960) 104 CLR 186
Cole v The Commonwealth (1961) 106 CLR 653
Fox v Percy (2003) 77 ALJR 989
Porter v Gordian Runoff Ltd & Anor [2004] NSWCA 69
Re J R L Ex parte C J L (1986) 161 CLR 342
Re Shaw Ex parte Shaw (1981) 55 ALJR 12
Vakauta v Kelly (1989) 167 CLR 568

PARTIES :

 Daniel Rory de Groot (an infant by his tutor Arlena Van Oosten) (Appellant)
The Nominal Defendant (Respondent)
FILE NUMBER(S): CA 40998/02
COUNSEL: A B Shand QC/P McGuiness (Appellant)
J Poulos QC/J Morris/S Kerrigan (Respondent)
SOLICITORS: Conroy & Stewart (Appellant)
Abbott Tout (Respondent)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 2012/01
LOWER COURT
JUDICIAL OFFICER : 		Gibb DCJ


                          CA 40998 of 2002

                          HANDLEY JA

                          26 MARCH 2004

DANIEL RORY DE GROOT (AN INFANT BY HIS TUTOR


ARLENA VAN OOSTEN) v THE NOMINAL DEFENDANT

CATCHWORDS

APPEAL – competency – appealable amount – plaintiff claiming increased damages of appealable amount – appeal competent

APPEAL – practice – prolix notice of appeal – struck out

APPEAL – practice – notice of appeal alleging actual bias of trial judge – grounds expressed in scandalous terms – filed without express instructions of appellant – struck out

APPEAL – practice – security for costs of appeal – personal injury case – appellant impecunious – no order for security for costs of appeal

COURTS and JUDGES – actual bias – not to be alleged without express instructions

FACTS

The appellant brought proceedings…

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Details
AGLC
de Groot v Nominal Defendant [2004] NSWCA 88
Case
[2004] NSWCA 88
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal by the plaintiff, de Groot, against the Nominal Defendant. The dispute concerned the plaintiff's claim for increased damages following a previous judgment. The plaintiff sought to appeal an earlier decision, and the competency of this appeal, particularly in relation to the appealable amount, was a central issue.

The court was required to determine several legal issues. These included whether the appeal was competent given the amount of damages claimed, the appropriateness of striking out the notice of appeal due to prolixity and scandalous allegations of actual bias against the trial judge, and whether security for costs should be ordered against an impecunious appellant in a personal injury case. The court also had to consider the proper procedure for alleging actual bias of a judge.

Handley JA found that the appeal was competent as the plaintiff was claiming increased damages exceeding the appealable amount. However, the notice of appeal was struck out because it was prolix and contained allegations of actual bias expressed in scandalous terms, which had been filed without the appellant's express instructions. The court also determined that no order for security for costs would be made, despite the appellant's impecuniosity, given the nature of the case. Leave was granted to file a further notice of appeal within 28 days.

Orders

Orders of the court

1. Claims 1, 2, 3 and 4 in the notice of motion of 16 July 2003 dismissed.; 2. Notice of appeal with appointment filed on 27 March 2003 struck out.; 3. Leave to file and serve a further notice of appeal within 28 days.; 4. Claim 6 in the notice of motion dismissed.; 5. No order as to the costs of the motion.; 6. Notice of motion stood over to 16 April 2004 at 9.30 am to enable directions to be given for the further hearing of these proceedings on the issues raised under SCR Pt 52A rr 43 and 43A.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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