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