Johnson v MacKinnon

[2020] NSWCA 258

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Johnson v MacKinnon [2020] NSWCA 258

Hearing dates:

14 September 2020

Date of orders:

14 September 2020

Decision date:

14 September 2020

Before:

McCallum JA

Decision:

1. The appellant’s application to vacate the hearing date is refused.

2. The appellant is to pay the respondent’s costs of the matters heard today.

Catchwords:

CIVIL PROCEDURE – application to vacate hearing date

Legislation Cited:

Civil Procedure Act

Uniform Civil Procedure Rules

Cases Cited:

Gersbach v Gersbach [2020] NSWCA 153

Category:

Procedural and other rulings

Parties:

Leigh Diane Johnson (appellant)
Ian Henry MacKinnon (respondent)

Representation:

Counsel:
J Burnside, QC, S Lipp (appellant)
T Dixon SC (respondent)

Solicitors:
Platinum Lawyers & Conveyancers (appellant)
Nelson McKinnon Lawyers (respondent)

File Number(s):

2020/07219

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Date of Decision:

13 December 2019

Before:

Stevenson J

File Number(s):

2015/332497

Judgment

1. McCALLUM JA: Two matters in these proceedings were referred to me by the Registrar. The first was the question of an extension of the time within which the notice of appeal may be filed. The second was an application to vacate the hearing dates presently scheduled for 10 and 11 November 2020. As to the first matter, the Registrar made plain that it would be a matter for the presiding judge to whom the matter was referred to determine whether to hear the application or to refer it to the full bench to be determined at the same time as the appeal.    

2. The circumstances in which the appeal is brought are helpfully summarised in the parties’ submissions. The proceedings were commenced in 2015. The appellant was the fifth defendant to the proceedings. The nature of the action was a representative proceeding under part 10 of the Civil Procedure Act 2005 (NSW). The claim arose out of investments on the part of the 154 members of the class in an allegedly fraudulent scheme perpetrated mainly by a person described by the appellant as “notorious fraudster”, Mr Peter Foster.

3. The trial commenced on 5 February 2018. The submissions record that the trial proceeded over some 20 non-consecutive days. However, the respondent notes that only six of those days were evidentiary hearing, the proceedings being interrupted sometimes for many months as a result of the appellant’s medical conditions. On 18 February 2019, the primary judge found that the appellant was involved in the fraudulent scheme and turned to consider the questions of causation and damages. On 28 November 2019, his Honour published a judgment on the remaining issues, entering judgment on 13 December 2019 against, among others, the appellant in favour of the lead plaintiff, who is now the respondent to the appeal.

4. The primary proceedings were then stood over to early February for the remaining members of the class to have their cases completed. However, on 9 January this year, the appellant filed a notice of intention to appeal. In accordance with rule 51.9(1)(a)…