Lawrance v Hodges - [2005] NSWCA 70

CITATION:
Lawrance v. Hodges [2005] NSWCA 70
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
14 March 2005

JUDGMENT DATE:

14 March 2005

JUDGMENT OF:
Beazley JA at 1; Hodgson JA at 2; Pearlman AJA at 19

DECISION:
Claimant's Notice of Motion filed 25 February 2005 dismissed. No order as to costs.

CATCHWORDS:
APPEAL - PROCEDURE - Application for leave to appeal - That application dismissed - Claimant claims to have appeal as of right - What procedural steps are open.

LEGISLATION CITED:
Supreme Court Act, s.101(2)(l), s.101(5)

CASES CITED:
Lawrence v. Nikolaidis (2003) 57 NSWLR 355

PARTIES:
Aroha Lawrance - claimant
Stephen Hodges - opponent

FILE NUMBER(S):
CA 40794/04

COUNSEL:
Ms. Lawrance appeared in person
No appearance for Mr. Hodges

LOWER COURT JURISDICTION:

LOWER COURT JUDICIAL OFFICER:
Santow JA

CA 40794/04

BEAZLEY JA
HODGSON JA
PEARLMAN AJA
Monday 14 March 2005

LAWRANCE V. HODGES

Judgment

1 BEAZLEY JA: I will ask Hodgson JA to give the first judgment in this matter.

2 HODGSON JA: On 16 August 2004, Windeyer J dismissed proceedings brought by the claimant against a number of defendants. The claimant sought leave to appeal from that decision, and that application for leave was dismissed by the Court of Appeal (Sheller and Tobias JJA) on 10 December 2004.

3 Shortly after 16 August 2004, the claimant commenced proceedings in the Common Law Division against five defendants, alleging that each of them was guilty of contempt of court by reason of failure failed to comply with a subpoena returnable before Windeyer J on 16 August 2004. Those proceedings came before Smart AJ on 6 September 2004, and he ordered that they be struck out.

4 On 20 September 2004, the claimant filed a summons for leave to appeal from that decision, naming one of the defendants in those proceedings, Stephen Hodges, as opponent. That application also came before Sheller and Tobias JJA on 10 December 2004, and an exchange occurred which the Court understood as a withdrawal of the application, following which the Court dismissed the application with costs.

5 On 31 January 2005, Registrar Schell dealt with an application by the claimant for an order in effect restoring the matter and giving it a hearing date. That application was refused. The claimant filed a Notice of Motion seeking that this decision be overturned, and that application came before Santow JA. On 14 February 2005, Santow JA dismissed the application, and ordered that the claimant pay the opponent’s costs of it.

6 The claimant now seeks that this decision be reviewed under s.46(4) of the Supreme Court Act.

7 In substance, what the claimant says is that on 10 December 2004, she did not withdraw her application, but rather indicated to the Court that she did not need leave to appeal and wanted the matter to be given a date. In substance, this is the result the claimant now seeks from this Court.

8 The difficulty…

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 Lawrance v Hodges

Details

AGLC: Lawrance v Hodges [2005] NSWCA 70
Case: [2005] NSWCA 70
Decision Date: 14 March 2005

CaseChat Overview and Summary

The parties in this matter were the claimant and the respondent. The claimant sought to appeal a decision of the court. The appeal was heard by Beazley and Hodgson JJA, and Pearlman AJA.

The central legal issue before the court was the procedural steps available to a claimant who asserted a right to appeal, following the dismissal of an application for leave to appeal.

The court considered the claimant's assertion of an appeal as of right and the implications of the prior dismissal of the application for leave to appeal. The court determined that the claimant's Notice of Motion, filed on 25 February 2005, was to be dismissed. No order was made as to costs.

Orders

Orders of the court

Claimant's Notice of Motion filed 25 February 2005 dismissed. No order as to costs.

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.

CITATION:	Lawrance v. Hodges [2005] NSWCA 70 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14 March 2005
JUDGMENT DATE:	14 March 2005
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; Pearlman AJA at 19
DECISION:	Claimant's Notice of Motion filed 25 February 2005 dismissed. No order as to costs.

CATCHWORDS:	APPEAL - PROCEDURE - Application for leave to appeal - That application dismissed - Claimant claims to have appeal as of right - What procedural steps are open.
LEGISLATION CITED:	Supreme Court Act, s.101(2)(l), s.101(5)
CASES CITED:	Lawrence v. Nikolaidis (2003) 57 NSWLR 355
PARTIES:	Aroha Lawrance - claimant Stephen Hodges - opponent
FILE NUMBER(S):	CA 40794/04
COUNSEL:	Ms. Lawrance appeared in person No appearance for Mr. Hodges

LOWER COURT JURISDICTION:
LOWER COURT JUDICIAL OFFICER:	Santow JA