Johnson v Mackinnon (No 2)

Case [2022] NSWCA 22


Court of Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: Johnson v Mackinnon (No 2) [2022] NSWCA 22
Hearing dates: Written submissions 30 August 2021; 13 September 2021; 23 September 2021
Date of orders: 24 February 2022
Decision date: 24 February 2022
Before: Macfarlan JA, Brereton JA and Simpson AJA at [1]
Decision:

Motion dismissed, with indemnity costs.

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – Review of previous decision of the Court of Appeal – Application to set aside decision pursuant to UCPR r 36.16 or court’s inherent jurisdiction – No identified matter raised in appeal overlooked – No misconception, misapprehension, oversight or inadvertence – Application dismissed

COSTS – Party/Party – Unmeritorious application seeking to reargue unsuccessful appeal – Indemnity costs awarded

Legislation Cited:

(NSW) Partnership Act 1892, ss 34, 60, 67

(NSW) Uniform Civil Procedure Rules 2005, r 36.16

Cases Cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Barrell Enterprises, Re [1973] 1 WLR 19; [1972] 3 All ER 631

Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) (2013) 87 ALJR 1159; [2013] HCA 44

Clifford v Timms [1908] AC 12

Commonwealth v Murray (1988) Aust Torts Reports 80-207

Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51

Fuller v Albert (No 2) [2021] NSWCA 183

Government Insurance Offıce (NSW) v Rosniak (1992) 27 NSWLR 665

Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27

Hill v Clifford [1907] 2 Ch 236

HudgellYeates & Co v Watson [1978] QB 451

Johnson v Mackinnon [2021] NSWCA 152

Lawrence v Ciantar (No 2) [2020] NSWCA 186

Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as “STC Sports Trading Club” (No 3) [2018] NSWSC 86

Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as “STC Sports Trading Club” (No 4) [2018] NSWSC 147

Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as “STC Sports Trading Club” (No 5) (Supreme Court (NSW), Stevenson J, 22 February 2018, unrep)

Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones,Miraleste Pty Ltd t/as USG Partner and Johnson, t/as “STC Sports Trading Club” (No 7) [2019] NSWSC 103

Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones,Miraleste Pty Ltd t/as USG Partner and Johnson, t/as “STC Sports Trading Club” (No 8) [2019] NSWSC 1658

Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as “STC Sports Trading Club” (No 9) (Supreme Court (NSW), Stevenson J, 13 December 2019, unrep)

Murray v Figge (1974) 4 ALR 612

New South Wales Bar Association v Smith [1991] NSWCA…

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AGLC
Johnson v Mackinnon (No 2) [2022] NSWCA 22
Case
[2022] NSWCA 22
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Johnson (the applicant) and Mackinnon (the respondent). The applicant sought to set aside a previous decision of the Court of Appeal, purportedly pursuant to rule 36.16 of the Uniform Civil Procedure Rules or the court's inherent jurisdiction. The dispute concerned the applicant's attempt to revisit a prior appellate determination that had been unsuccessful for them.

The central legal issue before the Court of Appeal was whether there were grounds to set aside its previous judgment. Specifically, the court had to determine if any relevant matter had been overlooked, or if there had been any misconception, misapprehension, oversight, or inadvertence in its prior decision-making process that would justify intervention.

The Court of Appeal found no basis to set aside its earlier judgment. It concluded that no identified matter had been overlooked and that there was no evidence of misconception, misapprehension, oversight, or inadvertence on its part. Consequently, the application to set aside the decision was dismissed. Given the unmeritorious nature of the application, which sought to reargue an unsuccessful appeal, the court ordered that the respondent be awarded indemnity costs.

Orders

Orders of the court

Motion dismissed, with indemnity costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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