Dunn v McCarthy - [2008] NSWCA 309

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Dunn v McCarthy [2008] NSWCA 309

FILE NUMBER(S):
40096/08

HEARING DATE(S):
14 November 2008

JUDGMENT DATE:
14 November 2008

EX TEMPORE DATE:
14 November 2008

PARTIES:
Craig Dunn (Appellant)
John Anthony McCarthy QC (Respondent)

JUDGMENT OF:
Allsop P Campbell JA Bell JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
30074/07

LOWER COURT JUDICIAL OFFICER:
Harrison AsJ

LOWER COURT DATE OF DECISION:
23 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Dunn v McCarthy QC [2007] NSWSC 1336

COUNSEL:
Unrepresented (Appellant)
JM Ireland QC; B Skinner (Respondent)

SOLICITORS:
McDermott and Associates as City Agent for Noble Lawyers (Appellant)
Haylen McKenzie (Respondent)

CATCHWORDS:
APPEALS – revocation of leave to appeal – appeal against a decision that court had no jurisdiction – where that decision is clearly right – where no live contender for the appeal – costs

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Dunn v McCarthy QC [2007] NSWSC 1336

TEXTS CITED:

DECISION:
(1) Leave to appeal revoked.
(2) Applicant for leave to appeal to pay costs of proceedings in this Court.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40096/08
SC 30074/07
ALLSOP P
CAMPBELL JA
BELL JA
FRIDAY 14 NOVEMBER 2008

CRAIG DUNN v JOHN McCARTHY

Judgment

ALLSOP P: I will ask Campbell JA to give the first judgment.
CAMPBELL JA: There is listed before the court today an appeal from a decision of Harrison AsJ in Dunn v McCarthy QC [2007] NSWSC 1336. It was necessary for leave to appeal to this Court to be given before there could be an appeal from that decision. That leave was granted earlier this year by Justice Hodgson and Justice Bell.
The decision that Harrison AsJ gave concerned an appeal, brought out of time, against a certificate of assessment of costs by a costs assessor. It was necessary, before the appeal to Harrison AsJ could proceed, for there to be an extension of time.
At the forefront of her reasons, her Honour noted that there was a power of extension of the time for appealing, noted that it was for the parties seeking the extension to persuade the court that it was in the interests of justice that an extension should be granted, noted that a relevant factor to that question was whether there was an acceptable explanation as to why the time limits were not complied with, and noted that no explanation had been given for the delay. At the hearing before her Honour, there had been no application made, on behalf of the appellant before her Honour, for an adjournment to enable any evidence of such an explanation to be given. Hence, her Honour declined to extend the time.
Her Honour indicated in her judgment that had she thought that there was substance in the appeal, she may well have granted an adjournment to enable any such evidence to be put on. However, when there was no application for an…

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.

Continue reading Dunn v McCarthy

Details

AGLC: Dunn v McCarthy [2008] NSWCA 309
Case: [2008] NSWCA 309
Decision Date: 14 November 2008

CaseChat Overview and Summary

The Full Federal Court considered an application for leave to appeal against a decision of a single judge who had determined that the Federal Court lacked jurisdiction. The applicant sought to appeal this jurisdictional ruling.

The primary legal issue before the Full Federal Court was whether to grant leave to appeal against the single judge's finding of no jurisdiction. This involved assessing whether the single judge's decision was demonstrably correct and whether there remained any genuine controversy or "live issue" to be determined by the appellate court.

The Court concluded that the single judge's decision on jurisdiction was clearly correct, and consequently, there was no real prospect of success on appeal. Given this, and the absence of any live issue, the Court determined that it was appropriate to revoke the leave to appeal that had previously been granted. The applicant was ordered to pay the costs of the proceedings in the Full Federal Court.

Orders

Orders of the court

(1) Leave to appeal revoked. (2) Applicant for leave to appeal to pay costs of proceedings in this Court.

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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