Filby v Neeson (No 2) - [2016] NSWSC 194

Supreme Court

New South Wales

Medium Neutral Citation: Filby v Neeson & Anor (No 2) [2016] NSWSC 194
Hearing dates: 3 March 2016
Date of orders: 03 March 2016
Decision date: 03 March 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
1. The Plaintiff’s Amended Summons be dismissed.
2. The Plaintiff pay the Defendants’ costs of the proceedings up to 1 December 2015 on the ordinary basis and on an indemnity basis thereafter.
Catchwords: APPEAL FROM LOCAL COURT – refusal to grant adjournment – denial of procedural fairness – non-attendance of witnesses – appeal on a question of law – appeal dismissed.
Legislation Cited: - Civil Procedure Act 2005 (NSW) – s 56(1), s 56(2)
- Criminal Appeal Act 1912 (NSW) – s 6
- Local Court Act 2007 (NSW) – s 39, s 40(1)
Cases Cited: - BKE v Office of Children's Guardian and Anor [2015] NSWSC 523
- Bloch v Bloch (1981) 180 CLR 390
- Clements v Independent Indigenous Advisory Committee [2003] FCA FC 143, 131 FCR 28
- Filby v Neeson & Anor (No 1) [2016] NSWSC 193
- HGV v The Queen (1999) 197 CLR 414
- House v King (1936) 55 CLR 499
- Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365
- Touma v Saparas [2000] NSWCA 11
Category: Principal judgment
Parties: Mark Andrew Filby – Plaintiff
Daniel Cormac Bernard Neeson and Kieran Corey Michael Neeson – Defendants
Representation:
Counsel:
M.K. Rollinson (until 11.55am) – Plaintiff
In person (from 11.55am) – Plaintiff
A. Kaylinger – Defendants
Solicitors:
Mark Filby – Plaintiff
Bay Legal – Defendants

File Number(s): 2015/229608

Judgment (revised from ex tempore)

The original plaintiff in the proceedings that resulted in the judgment of the Local Court the subject of this appeal was the late Bernard Patrick Neeson. He was also known as “Doc Neeson”. Doc Neeson was formerly the lead singer of The Angels, a band that was in the vanguard of the golden age of Australian pub rock during the 1970s and 80s.
Mr Neeson commenced the proceedings in the Local Court in 2014. The defendant was Mark Andrew Filby. Mr Neeson sought recovery of $70,500 he claimed that he lent to Mr Filby in 2008 and 2009, and a further amount of $750 he claimed to have lent in 2012. In an amended defence filed just before the hearing, Mr Filby admitted receiving the funds said to have been advanced in 2008 and 2009, but contended that they were not loans but an “investment” by Mr Neeson in Mr Filby's business venture known as “Cashtime”.
Mr Neeson passed away in 2014. His sons, Daniel Cormack Bernard Neeson and Kieran Corey Michael Neeson, being the executors of his estate, were substituted as plaintiffs (“the Executors”). The proceedings in the Local Court were heard on 6 July 2015. On 14 July 2015 the Presiding Magistrate upheld the executors' claim to the extent they sought recovery of the funds advanced in 2008 and 2009. Judgment for $70,500…

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 Filby v Neeson (No 2)

Details

AGLC: Filby v Neeson (No 2) [2016] NSWSC 194
Case: [2016] NSWSC 194
Decision Date: 03 March 2016

CaseChat Overview and Summary

The appeal before the court involved a decision by the Local Court to refuse an adjournment in proceedings brought by the plaintiff, Filby, against the defendant, Neeson. The dispute originated from an incident where the plaintiff alleged that the defendant had made defamatory statements. The matter was heard in the Local Court, and subsequently, the plaintiff appealed to a higher court, challenging the refusal to grant an adjournment on the basis of the defendant's non-attendance and the failure to observe procedural fairness.

The central legal issues addressed by the court were whether the Local Court had erred in denying the plaintiff's request for an adjournment and whether the defendant's non-attendance and the absence of called witnesses had deprived the plaintiff of a fair hearing. The court had to examine whether the Local Court's decision to proceed without the defendant's presence and without the testimony of witnesses was in accordance with the principles of procedural fairness and whether the refusal to adjourn constituted a substantial injustice.

In evaluating these issues, the court found that the Local Court had not erred in its decision. It determined that the plaintiff had not demonstrated that the defendant's absence or the failure to call witnesses would result in a significant injustice. The court held that the Local Court had acted within its discretion in managing the proceedings and that the plaintiff had not provided sufficient grounds to warrant an adjournment. Consequently, the appeal was dismissed, affirming the Local Court's decision.

Orders