SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
| Case Title: | Findex Group Pty Ltd v McKay |
| Citation: | [2023] ACTCA 36 |
| Hearing Date: | 25 August 2023 |
| Decision Date: | 22 September 2023 |
| Before: | Mossop, McWilliam and Taylor JJ |
| Decision: | See [230]. |
Catchwords: | PRACTICE AND PROCEDURE – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal against |
| interlocutory decision of primary judge on an issue of practice and | |
| procedure involving discretion – where appeal seeks to raise denial of procedural fairness and factual errors – reluctance of courts to grant leave to appeal interlocutory orders – where denial | |
| of procedural fairness may have effect of occasioning substantial | |
| injustice – leave granted | |
| PRACTICE AND PROCEDURE – APPEAL – Appeal against | |
| orders refusing leave to reopen decision following refusal of an | |
| application to amend Statement of Claim – whether primary judge proceeded upon a misapprehension of the facts – whether there was a denial of procedural fairness – appeal allowed – matter | |
| remitted | |
| Legislation Cited: | Corporations Act 2001 (Cth) Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 417, 501, 502, 504, 1613, 1720 |
| Cases Cited: | Autodesk Inc. v Dyason (No 2) (1993) 176 CLR 300 Commonwealth v Davis Samuel Pty Ltd (No 12) [2020] ACTSC 312 Findex Group Limited v McKay [2022] ACTSC 192 |
| Findex Group Ltd v iiNet Ltd (Application by ASIC) | |
| [2017] NSWSC 853 Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567 | |
| Findex Group Ltd v iiNet Ltd (Application by ASIC) (No 2) | |
| [2017] NSWSC 1048 Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 Findex Group Ltd v McKay [2019] NSWCA 93 Findex Group Limited v McKay (No 2) [2023] ACTSC 43 | |
| General Steel Industries Inc v Commissioner for Railways | |
| (NSW) (1964) 112 CLR 125 Gray v Sirtex Medical Ltd [2011] FCAFC 40; 193 FCR 1 House v The King (1936) 55 CLR 499 In re the will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 In the Matter of Prime City Investments Pty Ltd [2012] NSWSC | |
| 1287 | |
| Liu v The Age Company Pty Ltd (No 2) [2015] NSWSC 276 Liu v The Age Company Ltd [2016] NSWCA 115; 92 NSWLR 679 | |
| McKay v Findex Group Limited; Findex Group Limited v McKay | |
| [2023] ACTSC 58 McKay v Findex Group Limited [2022] ACTSC 191 McKay v Paule [2022] ACTCA 72 Notaras v St George Bank Ltd [2005] ACTSC 5; 157 ACTR 1 Paule v McKay [2020] ACTSC 145 Paule v McKay (No 2) [2022] ACTSC 190 | |
| Parties: | Findex Group Ltd (First Applicant) |
| Findex Services Pty Ltd (Second Applicant) Financial Index Australia Pty Ltd (Third Applicant) | |
| Spiro Paule (Fourth Applicant) | |
| Danielle Bartholomeusz nee Ludbey (Fifth Applicant) | |
| Phillip Hart (Sixth Applicant) David McKay (Respondent) | |
| Representation: | Counsel |
| M A Friedgut (Applicants) M Karam with H Rodgers (Respondent) | |
| Solicitors | |
| Harmers Workplace Lawyers (Applicants) Just Dispute Resolution (Respondent) | |
| File Number: | ACTCA 19 of 2023 |
| Decision Under Appeal: | Court: Supreme Court of the ACT |
| Before: McCallum CJ Date of Decision: 12 May 2023 | |
| Case Title:… |
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- AGLC
- Findex Group Pty Ltd v McKay [2023] ACTCA 36
- Case
- [2023] ACTCA 36
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether leave to appeal should be granted, and if so, whether the primary judge erred in dismissing Findex's application to reopen the earlier decision. Findex contended that they were denied procedural fairness in the handling of the reopening application and that the primary judge made factual errors in her decision, citing grounds that would constitute a substantial injustice.
The Court of Appeal granted leave to appeal, acknowledging the reluctance to interfere with interlocutory decisions but finding that the alleged denial of procedural fairness and potential factual errors could occasion substantial injustice. The Court reasoned that the primary judge may have proceeded on a misapprehension of the facts and that the appeal raised arguable points regarding procedural fairness.
The Court allowed the appeal and remitted the matter to the Supreme Court for further determination on whether Findex should be permitted to reopen the earlier decision.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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