Egan-Green v McLean

[2017] ACTCA 28

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Egan-Green v McLean

Citation:

[2017] ACTCA 28

Hearing Date:

29 May 2017; 31 May 2017

DecisionDate:

18 July 2017

Before:

Penfold J

Decision:

(a)    Ms Egan-Green’s application for an extension of time within which to seek leave to appeal from the primary judge’s decision is refused.

(b)    Ms Egan-Green’s appeal is incompetent, and is dismissed.

(c)    Ms Egan-Green is to pay Ms McLean’s costs of the proceedings in the Court of Appeal. 

Catchwords:

APPEAL AND NEW TRIAL – APPEAL – GENERAL  PRINCIPLES – whether appeal was incompetent – whether primary  judge’s decision was interlocutory or final – failure to file correct documents in timely way attributed to appellant’s reliance upon procedural advice from registry staff – whether appeal futile – whether injustice would be caused to appellant if appeal could not proceed.

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), ss 137, 137(1), 137(2)(b)

Family Law Act 1974 (Cth)
Federal Court of Australia Act 1976 (Cth), s 31A
Supreme Court Act, ss 37E(4), 37J, 37J(1)(h)
Court Procedures Rules 2006 (ACT), rr 1147, 1147(2)(a), 1147(2)(b), 1147(2)(c), 5310, 5312, 5405, 5405(1)(b), 5472, 5604, div 5.4.2

Practice Direction 1 of 2016

Cases Cited:

Bienstein v Bienstein [2003] HCA 7; 195 ALR 225

Capital Property Projects(ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) [2008] ACTCA 9; 2 ACTLR 44
In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70; 203 ALR 1
Egan-Green v McLean [2017] ACTSC 48
Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401
Piscioneri v Reardon [2016] ACTCA 33
Tampion v Anderson (1973) 3 ALR 414

Technical Team Projects v Noble Dunn (1990) 20 NSWLR 221

Parties:

Denise Egan-Green (Appellant)

Janice McLean (Respondent)

Representation:

Counsel

Unrepresented (Appellant)

Mr C Painter (Respondent)

Solicitors

Unrepresented (Appellant)

Snedden Hall & Gallop Lawyers (Respondent)

File Number:

ACTCA 11 of 2017

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Robinson AJ

Date of Decision:         7 March 2017

Case Title:  Denise Egan-Green v Janice McLean

Citation: [2017] ACTSC 48

The original proceedings

1. Denise Egan-Green, who appears to have been unrepresented throughout the relevant proceedings (although she has obtained some legal advice at certain points), brought an action for defamation against her former sister-in-law, Janice McLean.  The defamation was said to have been constituted by comments made by Ms McLean in 1997 to a person (the investigator) investigating Ms Egan-Green’s application for an annulment of her marriage.

1. The defamation proceedings were dismissed summarily on 7 March 2017 on application by Ms McLean. Ms Egan-Green wishes to appeal against that dismissal, and against other orders made by the primary judge.

Background

1. It is necessary first to set out some of the factual background to this unusual case.

1. In 1965 Ms Egan-Green married a Mr Walter Green. In 1995 they were divorced under the Family Law Act 1974 (Cth).  During the following year Ms Egan-Green applied…