Diane Maree Stanley v Belinda Rees

[2015] ACTSC 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Diane Maree Stanley v Belinda Rees

Citation:

[2015] ACTSC 22

Hearing Date(s):

2 February 2015

DecisionDate:

2 February 2015

Before:

Refshauge J

Decision:

1.    That the orders below of the Registrar be set aside.

2.    That the Plaintiff pay the costs of the Defendant in relation to those proceedings on 7 April 2014, enforcement of those costs be stayed until the conclusion of the principal proceedings.

3.    That each party pay their costs of the appeal.

Category:

Principal Judgment

Catchwords:

CIVIL – PROCEDURE – Appeal from the Registrar – Rehearing – Arguable appealable error

Cases Cited:

Builders Licensing Board v Sperway Constructions Sydney Pty Ltd (1976) 135 CLR 616

Foote v Dixon [2014] ACTCA 51
Harris v Caladine (1991) 172 CLR 84

Parties:

Diane Maree Stanley (Appellant)

Belinda Rees (Respondent)

Representation:

Counsel

Mr A Bartley (Appellant)

Mr Black (Respondent)

Solicitors

Ken Cush and Associates as agents for Commins Hendriks Solicitors (Applicant)

Moray and Agnew Lawyers (Defendant)

File Number(s):

SC 269 of 2013

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Registrar Edwards

Date of Decision:         7 April 2014

Case Title:  Stanley v Rees

Court File Number(s):   SC 269 of 2013

Refshauge J:

1. In July 2013, the Plaintiff commenced proceedings in this Court in respect of an incident involving a motor vehicle accident collision in February 2008 for which she claims damages.  The matter came before the Registrar on 7 April 2014, in circumstances with which I do not need to be concerned.  The Plaintiff was not present and the Defendant, who had filed an application seeking judgment for the Defendant against the Plaintiff, appeared and sought that order from the Registrar.  The Registrar, in the circumstances, granted that order.  An appeal has now been lodged against the decision of the Registrar and the matter before me.

1. I was informed that the parties had resolved their differences and they have asked me to make orders by consent.  The appeal from the Registrar is not an appeal of the same kind that is brought from this Court to the Court of Appeal.  It is a rehearing in the sense used in Builders Licensing Board v Sperway Constructions Sydney Pty Ltd (1976) 135 CLR 616 and Harris v Caladine (1991) 172 CLR 84. Nevertheless, I was concerned at the result of an appeal by consent where the orders of another court, in this case constituted by the Registrar, should be set aside and the appeal upheld.

1. Recently, the Court of Appeal has agitated this matter in Foote v Dixon [2014] ACTCA 51 where the court held that the existence of an arguable appellable error was required before the court could canonance the setting aside of the decision of the court below. I was assisted by counsel, and counsel for the Defendant, the Respondent to the appeal, accepted that the limitation period upon the maintenance of the Plaintiff’s claim was one on which there was an arguable appellable error.

1. Accordingly, I am content to uphold the appeal, and in doing so I order that the orders below of the Registrar be set aside, that the Plaintiff pay the costs of the Defendant in relation to those proceedings on 7 April 2014, enforcement of those costs be stayed until the conclusion of the principal proceedings and that each party pay their costs of the appeal.

I certify that the precent [4] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate

Date: 16 April 2015