Harris v Bellemore (No 2) - [2013] NSWCA 17

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Harris v Bellemore (No 2) [2013] NSWCA 17
Hearing dates: 8 February 2013
Decision date: 08 February 2013
Before: Beazley JA at [1]; [11]
Macfarlan JA at [2]
Decision:
The application for summons for leave to appeal is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: APPEAL - application for leave to appeal dismissed - no issue of principle
Cases Cited: Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577
Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427
Category: Procedural and other rulings
Parties: Paul Harris (Applicant)
Michael Bellemore (Respondent)
Representation: Counsel:
B M J Toomey QC/E G Romaniuk (Applicant)
S R Donaldson SC/E C Muston/L M Jackson (Respondent)
Solicitors:
T D Kelly & Co (Applicant)
Blake Dawson (Respondent)

File Number(s): 2012/270445
Decision under appeal

Jurisdiction:

9111

Citation:

Harris v Bellemore (No 4) [2012] NSWSC 878

Date of Decision:

2012-08-03 00:00:00

Before:

McCallum J

File Number(s):

2010/92491; 2001/20699

Judgment

BEAZLEY JA: I will ask Macfarlan JA to give the first judgment.

MACFARLAN JA: This is an application by the plaintiff in the court below for leave to appeal against a decision of McCallum J dated 3 August 2012 ([2012] NSWSC 878) declining to make an order referring to another judge for hearing issues that this court remitted to her Honour for determination.

Previously, on 29 March 2010, her Honour had delivered final judgment in the proceedings ([2010] NSWSC 176) but on 21 July 2011 an appeal to this Court was allowed in part and certain issues were remitted to her Honour for determination ([2011] NSWCA 196).

The first basis for the plaintiff's application to her Honour was that her Honour had no power to deal with the issues because she was functus officio, having earlier delivered a final judgment in the matter. Secondly, the plaintiff contended that her Honour should disqualify herself for apparent bias because a fair-minded lay observer might reasonably think that her Honour might not bring an open mind to determination of the issues. This contention was based on comments her Honour made in the judgment of 29 March 2010. In particular, the plaintiff relied on statements in that judgment to the effect that it did not appear that the plaintiff's procurvatum medical condition had any functional significance.

On his application for leave to appeal, the plaintiff contends, first, that McCallum J rejected his application upon the basis that she was bound by the view of this court expressed in…

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 Harris v Bellemore (No 2)

Details

AGLC: Harris v Bellemore (No 2) [2013] NSWCA 17
Case: [2013] NSWCA 17
Decision Date: 08 February 2013

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal brought by Harris against Bellemore. The specific nature of the dispute between the parties is not detailed in the provided text, but the application for leave to appeal was heard by Beazley and Macfarlan JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether leave to appeal should be granted. This determination hinged on whether the appeal raised an issue of principle, a common threshold for granting leave to appeal in many Australian jurisdictions.

The Court of Appeal dismissed the application for leave to appeal, finding that no issue of principle was raised by the proposed appeal. Consequently, the Court ordered that the application be dismissed with costs. The note appended to the orders refers to the Uniform Civil Procedure Rules 2005 concerning the entry, setting aside, and variation of judgments and orders, including relevant time limits.

Orders

Orders of the court

The application for summons for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Harris v Bellemore (No 2) [2013] NSWCA 17
Hearing dates:	8 February 2013
Decision date:	08 February 2013
Before:	Beazley JA at [1]; [11] Macfarlan JA at [2]
Decision:	The application for summons for leave to appeal is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - application for leave to appeal dismissed - no issue of principle
Cases Cited:	Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427
Category:	Procedural and other rulings
Parties:	Paul Harris (Applicant) Michael Bellemore (Respondent)
Representation:	Counsel: B M J Toomey QC/E G Romaniuk (Applicant) S R Donaldson SC/E C Muston/L M Jackson (Respondent) Solicitors: T D Kelly & Co (Applicant) Blake Dawson (Respondent)
File Number(s):	2012/270445
Decision under appeal	Jurisdiction: 9111 Citation: Harris v Bellemore (No 4) [2012] NSWSC 878 Date of Decision: 2012-08-03 00:00:00 Before: McCallum J File Number(s): 2010/92491; 2001/20699