Fitzgerald v Parramatta Leagues Club Limited

[2010] NSWCA 88

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Fitzgerald v Parramatta Leagues Club Limited [2010] NSWCA 88

FILE NUMBER(S):
2010/94885

HEARING DATE(S):
19 April 2010

JUDGMENT DATE:
19 April 2010

EX TEMPORE DATE:
19 April 2010

PARTIES:
Denis Fitzgerald
Parramatta Leagues Club Limited

JUDGMENT OF:
Allsop P Young JA    

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
2010/94885

LOWER COURT JUDICIAL OFFICER:
Gzell J

LOWER COURT DATE OF DECISION:
19 April 2010

COUNSEL:
A J Sullivan QC and R Weber SC (Applicant) - ex parte

SOLICITORS:
Slater & Gordon (Applicant)

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:

1. The summons in the Equity Division summons seeking leave to appeal, Mr Fitzgerald's affidavit and any available note by the solicitors of the reasons of the two judges of the Court of Appeal be served upon the defendant, to the extent possible, by 5.45 this afternoon by email and by personal service.

2. The Equity Division summons be remitted to the Equity Division and be listed before the Corporations Judge no earlier than 2 o'clock on Tuesday 20 April.

3. The order of the Equity Division of today's date listing the matter before the registrar on Friday 23 April at 9.15 be vacated.

4. Leave to appeal dismissed.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2010/94885

ALLSOP P
YOUNG JA

Monday 19 April 2010

DENIS FITZGERALD  v  PARRAMATTA LEAGUES CLUB LIMITED

Judgment

1. ALLSOP P:  I accept and fully understand the difficult position practitioners are often placed in deciding whether to move the Court with minimal documents or move the Court after steps are taken, however, here, I think it is very important that the matter has come to the Court ex parte when the Parramatta Club has not been served either the summons or affidavits or the application for leave to appeal in circumstances where the letter about which complaint is made was first received on 8 April 2010.

1. That is not said by way of criticism, but I think it is important because to injunct a meeting would, in effect, be giving a form of immediate final relief. I would not grant an injunction today and, because of that, I would not grant leave to appeal from the learned primary judge.  However, my unwillingness to grant leave and the injunction is based upon the lateness of the matter before the court this afternoon.

2. The learned primary judge indicated this morning his view that the letter of 8 April could be characterised as a charge under clause 49 of the club's constitution.

3. Without the benefit of contradictory argument, I have grave doubt that the letter is a charge under clause 49.  It does not appear on its face to set out the facts, matters and circumstances giving rise to a charge.  It appears only to raise matters for an investigation.

4. Further, because it is a letter which appears on its face to do no more than give topics for investigation, in many respects, it is difficult for the recipient to understand what is called for to answer the charge, beyond answering questions.

5. Four grounds were put before us.  I think there is, subject to hearing from the other side, powerful considerations to conclude that there may not be a notice of charge at all, with a consequent effect on an absence of procedural fairness.  An interesting question arises about the deed of release and whether it squarely covers by what has happened.

6. While I am not prepared to grant an injunction, or grant leave from the learned primary judge's refusal to grant an injunction for the reasons I have identified, I would say that if steps are taken this evening which affect the rights, interests and reputation of the applicant, Mr Fitzgerald, I would be of the view that there would be an apparent basis for expedition of any application in the Equity Division (although, of course, such matters are not a matter for those other than the Equity Division judges).

7. One order that I would make, notwithstanding my refusal to grant leave or grant an injunction, is to order that the solicitors for Mr Fitzgerald take all available steps to serve the primary summons in the Equity Division on the club by 5.45 this afternoon together with, if possible, a note of the reasons of the court today, together with Mr Fitzgerald's affidavit and the application for leave to appeal.

8. As well as making that order as to service I would remit the primary summons to the Equity Division.

9. YOUNG JA:  I would agree with what the President has said.  It seems to me that the delay and the non-service on the respondent both before Gzell J and for this application prelude a favourable decision for the applicant on this application.  It's extremely difficult to obtain ex parte relief where there has been opportunity to notify the opponent, and that applies both at first instance and seeking leave to appeal against refusal.

10. I agree that the documents should be served by quarter to 6 tonight.  One reason for that is fairness.  The other is that the defendant might consider it would be expedient to adjourn the meeting.

11. ALLSOP P:  The orders of the Court are:

    1.The summons in the Equity Division, the summons seeking leave to appeal, Mr Fitzgerald's affidavit and any available note by the solicitors of the reasons of the two judges of the Court of Appeal be served upon the defendant, to the extent possible, by 5.45 this afternoon by email and by personal service.

    2.The Equity Division summons be remitted to the Equity Division and be listed before the Corporations Judge no earlier than 2 o'clock on Tuesday 20 April.

    3.The order of the Equity Division of today's date listing the matter before the registrar on Friday 23 April at 9.15 be vacated.

    4.          Leave to appeal dismissed.

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LAST UPDATED:
28 April 2010