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Lakaev v McConkey

Lakaev v McConkey

Case [2024] TASSC 35 12 July 2024

Civil Litigation & Procedure

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[2024] TASSC 35

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Lakaev v McConkey [2024] TASSC 35
PARTIES:	LAKAEV, Natasha
v
McCONKEY, Carli
FILE NO:	771/2024
DELIVERED ON:	12 July 2024
DELIVERED AT:	Hobart
HEARING DATE:	28 May 2024
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of court – Other matters – Dismissal for want of prosecution – List of documents proposed to be included in appeal book not delivered – Proposed appeal grounds not formulated – Prospects of success not strong – Appellant seeking delay on medical grounds – Prejudice to respondent.

Aust Dig Appeal and New Trial [392]

Cases referred to:
Bajramovic v Calubaquib [2015] NSWCA 139, 71 MVR 15
Biss v Lambeth, Southwark and Lewisham Area Health Authority (Teaching) [1978] 1WLR 382
Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 62 ALR 53
Chambers v Jobling (1986) 7 NSWLR 1
Chouman v Margules (1993) 17 MVR 144
Cooper v Hopgood & Ganim [1998] QCA 114, [1999] 2 Qd R 113
Dearman v Dearman (1908) 7 CLR 549
De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640
Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197
Deputy Commissioner of Taxation (Cth) v Luckhardt [2006] QCA 53
Faris v Savage [2019] ACTSC 339
Faris v Savage (No 2) [2020] ACTSC 219
Fox v Percy [2003] HCA 22, 214 CLR 118
Jowett v Kelly [2008] NSWSC 1009
Lakaev v McConkey [2024] TASSC 8
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Masel v Transport Industries Insurance Co Ltd [1995] 2 VR 328
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Morocz v Marshman [2016] NSWCA 202
Muto v Faul [1980] VR 26
Palermo Seafood Pty Ltd v Lunapas [2015] NSWCA 175
R v Birks (1990) 19 NSWLR 677
Seymour v Drill Engineering & Pastoral Co Pty Ltd [2023] QCA 159
State Rail Authority (NSW) v Earthline Constructions Pty Ltd [1999] HCA 3, 160 ALR 588
Stollznow v Calvert [1980] 2 NSWLR 749
Varmedja v Varmedja [2008] NSWCA 177
Voulis v Kozary (1975) 180 CLR 177
Witten v Lombard Australia Limited (1968) 88 WN (NSW) (Pt 1) 405
Legislation:
Defamation Act 2005 (Tas) s 25

REPRESENTATION:

Counsel:

Plaintiff: In Person
Defendant: In Person

Judgment Number:	[2024] TASSC 35
Number of paragraphs:	79

Serial No 35/2024 File No 771/2024

NATASHA LAKAEV v CARLI McCONKEY

REASONS FOR JUDGMENT

BLOW CJ
12 July 2024

1 This is an application for an appeal to the Full Court to be dismissed for want of prosecution.
2 The appeal is from a judgment dismissing a defamation action. In 2017 the respondent, Carli McConkey, published a book that she had written entitled The Cult Effect. It contained a great deal of material about the appellant, Dr Natasha Lakaev. The respondent asserted that she had spent 13 years as a member of…

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 Lakaev v McConkey

Details

AGLC: Lakaev v McConkey [2024] TASSC 35
Case: [2024] TASSC 35
Decision Date: 12 July 2024

CaseChat Overview and Summary

In the matter of Lakaev v McConkey, the respondent sought an order for the dismissal of the appellant's appeal for want of prosecution, on the basis that the appellant had not delivered a list of documents proposed to be included in the appeal book and had not formulated the proposed appeal grounds. The case was heard in the Supreme Court of Tasmania. The appellant argued that the delay was due to medical issues, but the court needed to consider the prejudice to the respondent and the prospects of success of the appeal.

The court was required to determine whether the appellant's failure to deliver the list of documents and formulate the proposed appeal grounds constituted sufficient grounds for the dismissal of the appeal for want of prosecution. Additionally, the court needed to weigh the appellant's medical reasons for the delay against the prejudice caused to the respondent and assess the prospects of success of the appeal. The court had to balance these factors to determine whether the dismissal of the appeal was warranted.

The court found that the appellant's failure to deliver the list of documents and formulate the proposed appeal grounds was a significant procedural error. However, the court also considered the appellant's medical reasons for the delay. The court found that the prejudice to the respondent was significant, as the respondent had been unable to prepare for the appeal hearing. Furthermore, the court found that the prospects of success of the appeal were not strong. Given these factors, the court determined that the dismissal of the appeal for want of prosecution was appropriate.

The court ordered the dismissal of the appellant's appeal for want of prosecution. The court emphasised the importance of complying with procedural requirements in appellate proceedings and highlighted the significant prejudice caused to the respondent by the appellant's delay. The court also noted that the prospects of success of the appeal were not strong, which further supported the decision to dismiss the appeal.

Orders