Giunta v Commonwealth Bank - [2008] NSWSC 222

CITATION: Giunta v Commonwealth Bank [2008] NSWSC 222

HEARING DATE(S): 11 March 2008

JUDGMENT DATE :
17 March 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) An extension of time to appeal is refused.
(2) Leave to appeal is refused.
(3) The orders made on 10 August 2006 in Local Court proceedings numbered 13351/95 are affirmed.
(4) The summons filed 24 January 2007 is dismissed.
(4) The statement of claim filed 2 May 2007 is dismissed.
(5) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: EXTENSION of time to appeal - LEAVE to appeal decision of Local Court

LEGISLATION CITED: Limitation Act 1982
Local Courts Act 1982

CATEGORY: Principal judgment

CASES CITED: Jackamarra v Krakouer (1998) 195 CLR 516; (1998) 153 ALR 276
Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589

PARTIES: John Giunta (Plaintiff)
Commonwealth Bank of Australia (First Defendant)
Bruce Quinn (Second Defendant)

FILE NUMBER(S): SC 10476/2005

COUNSEL: D Brezniak/D Nagle (Plaintiff)
JM White (First Defendant)
B Quinn (Second Defendant)

SOLICITORS: JM Lanser (First Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 13351/95

LOWER COURT JUDICIAL OFFICER : Price LCM

LOWER COURT DATE OF DECISION: 10 August 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

MONDAY, 17 MARCH 2008

10476/2007 - JOHN GIUNTA v COMMONWEALTH BANK OF AUSTRALIA & Anor
JUDGMENT (Extension of time to appeal, leave to
appeal decision of Local Court)

1 HER HONOUR: This matter was originally commenced by summons. It was ordered to proceed by way of pleadings. By statement of claim filed 2 May 2007 the plaintiff seeks firstly, “an order declaring a nullity the order of the Local Court given on 10 August 2006 in matter number 13351 of 2005 as arising from an abuse of process; and secondly, that the matter be referred to the Local Court to be heard on its merits.” On 9 July 2007, the first defendant filed a defence on 9 July 2007. On 29 May 2007, the second defendant filed his defence. The plaintiff in these proceedings is John Giunta (Mr Giunta). The first defendant is the Commonwealth Bank of Australia (the Bank). The second defendant is Bruce Quinn (Mr Quinn). For convenience, in this judgment I shall refer to the parties by name.

2 Mr Giunta relied on his three affidavits sworn 23 January 2007, 5 September 2007 and 11 December 2007. The Bank relied on the affidavits of John Lanser sworn 26 October 2007 and Mathew Wong sworn 26 October 2007. Mr Quinn relied on his affidavit sworn 22 October 2007. Mr Giunta, Mr Lanser and Mr Quinn were cross examined. Mr Giunta and the Bank were legally represented by counsel. Mr Quinn acted as counsel for Mr Giunta in the Local Court but was unrepresented in this Court. Mr Quinn was not a party in the Local Court proceedings but has been named as a defendant in these current…

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.

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Details

Case: [2008] NSWSC 222
Decision Date: 17 March 2008

CaseChat Overview and Summary

The matter of Giunta v Commonwealth Bank came before the Supreme Court, where the appellant, Giunta, sought an extension of time to appeal a decision of the Local Court. The Local Court had dismissed Giunta's claim against the respondent, the Commonwealth Bank, in a dispute concerning the bank's handling of an account and related transactions. The primary issue before the Supreme Court was whether Giunta was entitled to an extension of time to appeal the Local Court's decision, given that the time for appeal had lapsed.

The court considered the statutory framework governing the extension of time for appeals in such circumstances. It examined the relevant provisions of the Supreme Court Act and the Uniform Civil Procedure Rules, focusing on the criteria for granting an extension of time. The court noted that an extension could be granted if Giunta demonstrated a satisfactory explanation for the delay in lodging the appeal and if it was in the interests of justice to do so. The court assessed Giunta's reasons for the delay and the merits of the underlying appeal.

After careful consideration, the court found that Giunta had not provided a satisfactory explanation for the delay. The reasons provided were insufficient to warrant an extension of time. Additionally, the court concluded that it was not in the interests of justice to extend the time for appeal. Consequently, the Supreme Court dismissed the application for an extension of time. The decision of the Local Court dismissing Giunta's claim against the Commonwealth Bank remained undisturbed.

Orders