Logan v Baird

[2011] NSWCA 19

Court of Appeal

New South Wales

Case Title:

Logan v Baird

Medium Neutral Citation:

[2011] NSWCA 19

Hearing Date(s):

21 February 2011

Decision Date:

21 February 2011

Jurisdiction:

Before:

Campbell JA

Decision:

(1) Strike out the Notice of Appeal filed 2 February 2011.
(2) Strike out Notice of Motion filed 2 February 2011.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - Court of Appeal - notice of appeal - requirements of notice of appeal

APPEAL - Court of Appeal - appeal out of time - application for extension of time

PRACTICE - order for pro bono assistance - relevant considerations for deciding that it is in the interests of justice to make the order - prospects of success of appeal

Legislation Cited:

Uniform Civil Procedure Rules

Cases Cited:

Baird v Logan [2008] NSWSC 1029
Kelly v Mosman Municipal Council [2010] NSWCA 370
Fox v Percy (2003) 214 CLR 118

Texts Cited:

Category:

Interlocutory applications

Parties:

Pamela Clare Logan (Appellant)
Jennifer Joan Baird (Respondent)

Representation

- Counsel:

- Solicitors:

In person (Appellant)
No Appearance (Respondent)

File number(s):

2011/34281

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Palmer J

- Date of Decision:

26 September 2008

- Citation:

Baird v Logan - Middleton Estate [2008] NSWSC 1029

- Court File Number(s)

113268/08

Publication Restriction:

Judgment

1. HIS HONOUR : This is a matter has been referred to me by the registrar. It arises in some proceedings that were purportedly commenced by a notice of appeal filed on 2 February 2011.

1. The appellant, Mrs Logan, was at one stage co-executrix with her sister, Mrs Baird, of the estate of their deceased mother. Palmer J decided, on 26 September 2008, that Mrs Logan should be removed as executrix of the estate: Baird v Logan [2008] NSWSC 1029. The ground of his Honour's decision was that Mrs Logan had refused to join in the discharge of a mortgage, securing a debt of $13,100 owed to her mother's estate. Palmer J held at [16] that he could find no rational reason why she refused to discharge the mortgage, or what reasonable suspicions she could have regarding the propriety of the mortgage, or the correctness of the amount necessary to discharge it. The judge found [at 17] that "there is no way in which Mrs Logan will ever be satisfied that it is proper to execute the discharge of mortgage." He found that there were repeated instances of Mrs Logan refusing to accept legal advice, and found that "she is completely unable to bring herself to co-operate with Mrs Baird in the administration of this estate on any matter, large or small."

1. Because of the delay, of nearly 2 years, in filing of the notice of appeal it was possible under the rules for an appeal to be brought from his Honour's judgment only by leave. Because the Notice of Appeal was filed out of time and without prior leave it was irregular, though it was not a nullity.

1. The notice of appeal stated as its grounds: "Disadvantaged no legal representation. Paperwork withheld under legal professional privilege. Other grounds refer to affidavit & contents".

1. It is a fundamental requirement of a notice of appeal that it identify the respects in which the judgment for the orders appealed from is contended to be wrong, and the reasons why it is contended to be wrong, or the respect in which it is contended the proceedings below miscarried. The appeal grounds set out in the notice of appeal do not meet those criteria. For that reason, I propose to strike out the notice of appeal.

1. The precise process that was referred to me by the registrar today was a notice of motion that Mrs Logan filed. It has not been served on anyone. The orders that it seeks are:

"1. That the court grant right of late appeal.

2. That the court grant legal representation under the Supreme Court pro bono scheme."

1. The striking out of the notice of appeal has the effect that the notice of motion must fall with it. However, it is appropriate, as Mrs Logan is a litigant in person, that I make some remarks concerning it.

1. As to the application for extension of time, the lapse of time is in itself significant. As I understand it, the executors contend that the estate is now fully administered. If that is right, then there would be no practical utility in overturning Palmer J's order removing Mrs Logan. She is concerned that the judgment has impacted badly on her reputation. It is not appropriate for a court to hear an appeal, in circumstances where the sole practical benefit of establishing that the judgment below was wrong would be to vindicate the reputation of someone.

1. Mrs Logan informed me orally of some reasons why the appeal was late in being brought. As I understood it, they related to a long process of assessment of an order for costs that Palmer J made. I have difficulty in seeing how that in itself provides a reason for delay in instituting the appeal against the order removing Mrs Logan from her position as executrix.

1. The second order sought by the notice of motion, namely that the court grant legal representation under the Supreme Court pro bono scheme, is one that would require some consideration to be given to the grounds of appeal. In Kelly v Mosman Municipal Council [2010] NSWCA 370 at [19] and following I explained how UCPR 7.36 enables the court to refer a matter to the pro bono panel for legal assistance only if the court had first come to the view that it is in the interests of the administration of justice to do so. Where an appeal is involved, that can itself involve the court in forming a view that the appeal has some prospects of success. At present, if the administration of the estate has indeed been completed, there would be no practical utility in reversing the order of Palmer J, and for that reason there would be significant obstacles in the way of the court satisfying itself that it was in the interests of justice for Mrs Logan to be provided with legal help to overturn the judgment below.

1. As well, the judgment of Palmer J, in the aspects that I have mentioned earlier, is dependent upon conclusions of fact that depended in part upon assessment of matters of demeanour. There would be a particular hurdle involved in succeeding in an appeal against any such factual findings: Fox v Percy (2003) 214 CLR 118.

1. In the circumstances I have outlined the orders I make are:

1. Strike out the notice of appeal filed 2 February 2011.

2. Strike out notice of motion filed 2 February 2011.

1. As there is no appearance for any opposite party today, there is no occasion for making any costs order.

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