Maxwell-Smith v Hall - [2012] NSWCA 205

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Maxwell-Smith v Hall & Anor [2012] NSWCA 205
Hearing dates: 25 June 2012
Decision date: 25 June 2012
Before: Campbell JA
Decision:
Notice of Motion dismissed.
[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:
PRACTICE AND PROCEDURE - application for pro bono assistance under UCPR 7.36 - where litigant had received assistance under a previous referral twice within preceding three years - determining whether interests of justice are in the applicant's favour requires assessment of whether the appeal has reasonable prospects of success - prospects of success found to be insufficient - application refused
PRACTICE AND PROCEDURE - power to waive, postpone and remit fees under Civil Procedure Regulation 2005 reg 11 - power to be exercised by Registrar on separate application
Legislation Cited: Civil Procedure Regulation 2005
Cases Cited: Kelly v Mosman Municipal Council (2010) NSWCA 370
Category: Interlocutory applications
Parties: Inge Maxwell-Smith (First Applicant)
Eugene Maxwell-Smith (Second Applicant)
Steve Hall (First Respondent)
S & E Hall Pty Ltd (Second Respondent)
Hugo Patrick White (Third Respondent)
Representation: Counsel:
In person (First Applicant)
J Riordan (First and Second Respondent)
B Alder (Third Respondent)
Solicitors:
In person (First Applicant)
Ellison Tillyard Callanan (First and Second Respondent)
Middletons (Third Respondent)

File Number(s): 2012/154529
Decision under appeal

Date of Decision:

2012-04-20 00:00:00

Before:

Colefax DCJ

File Number(s):

2010/292575

Judgment

CAMPBELL JA: This is a notice of motion brought by Mrs Maxwell-Smith in proceedings in which she seeks leave to appeal from a judgment that his Honour Judge Colefax SC gave on 20 April 2012.

The application for leave to appeal also asserts that it is brought in the name of Mr Maxwell-Smith. It is not necessary for the purposes of this application to consider any further the position of Mr Maxwell-Smith, because Mrs Maxwell-Smith did not seek leave to appear on behalf of him, and today accepted that anything that she could have said on behalf of herself would also apply to her husband and that her husband would not have anything additional to say. Some directions have already been given today to seek to clarify the position that Mr Maxwell-Smith has as a named party in the litigation.

The notice of motion seeks both pro bono assistance and waiver of fees. It is not appropriate for a judge in the first instance to make an order for waiver of fees, even if it were open to the judge to do it. It is usually the province of the Registrar to make a decision about waiver of fees in the first instance. There is scope for appellate procedures if Mrs…

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 Maxwell-Smith v Hall

Details

AGLC: Maxwell-Smith v Hall [2012] NSWCA 205
Case: [2012] NSWCA 205
Decision Date: 25 June 2012

CaseChat Overview and Summary

In *Maxwell-Smith v Hall*, the applicant sought pro bono assistance under Rule 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). The applicant had previously received pro bono assistance twice within the preceding three years. The court was required to determine whether the interests of justice favoured granting further pro bono assistance in these circumstances.

The central legal issue was the assessment of whether the appeal had reasonable prospects of success, which is a key criterion under Rule 7.36 for determining if the interests of justice are in the applicant's favour. The court also noted that the power to waive, postpone, or remit fees under the Civil Procedure Regulation 2005 (NSW) is a separate matter to be exercised by the Registrar upon a distinct application.

Campbell JA found that the prospects of success for the appeal were insufficient to warrant the granting of pro bono assistance. Consequently, the Notice of Motion seeking such assistance was dismissed.

Orders

Orders of the court

Notice of Motion dismissed.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Maxwell-Smith v Hall & Anor [2012] NSWCA 205
Hearing dates:	25 June 2012
Decision date:	25 June 2012
Before:	Campbell JA
Decision:	Notice of Motion dismissed. [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:	PRACTICE AND PROCEDURE - application for pro bono assistance under UCPR 7.36 - where litigant had received assistance under a previous referral twice within preceding three years - determining whether interests of justice are in the applicant's favour requires assessment of whether the appeal has reasonable prospects of success - prospects of success found to be insufficient - application refused PRACTICE AND PROCEDURE - power to waive, postpone and remit fees under Civil Procedure Regulation 2005 reg 11 - power to be exercised by Registrar on separate application
Legislation Cited:	Civil Procedure Regulation 2005
Cases Cited:	Kelly v Mosman Municipal Council (2010) NSWCA 370
Category:	Interlocutory applications
Parties:	Inge Maxwell-Smith (First Applicant) Eugene Maxwell-Smith (Second Applicant) Steve Hall (First Respondent) S & E Hall Pty Ltd (Second Respondent) Hugo Patrick White (Third Respondent)
Representation:	Counsel: In person (First Applicant) J Riordan (First and Second Respondent) B Alder (Third Respondent) Solicitors: In person (First Applicant) Ellison Tillyard Callanan (First and Second Respondent) Middletons (Third Respondent)
File Number(s):	2012/154529
Decision under appeal	Date of Decision: 2012-04-20 00:00:00 Before: Colefax DCJ File Number(s): 2010/292575