Mahommed v Unicomb

Mahommed (the applicant) sought to set aside a dismissal of proceedings in the Equity Division of the Supreme Court of New South Wales, which had been ordered by a first judge. An application to a second judge to set aside this dismissal was refused, on the basis that it was essentially an attempt to reargue the first judge's decision. Leave to appeal against the second judge's refusal was subsequently sought.

The primary legal issue before Macfarlan and Payne JJA was whether the second judge erred in refusing to set aside the dismissal order made by the first judge. This involved considering whether the application to the second judge presented any new material or arguments that warranted a departure from the first judge's determination, or if it was merely a collateral attack on the original decision.

The Court of Appeal held that the application to the second judge was indeed an attempt to reargue the first decision, and that the second judge had correctly refused to entertain it on that basis. The principles applied concerned the finality of judgments and the limited circumstances in which a party can seek to have a dismissal order set aside, particularly when the application is not supported by fresh evidence or a demonstration of error in the original decision.

The Court of Appeal made orders extending the time for filing the summons seeking leave to appeal to the date it was filed, and then dismissed the summons seeking leave to appeal, with costs.