McCarthy v National Australia Bank Ltd (No 2)

The applicant, McCarthy, sought a stay of execution of a writ of possession issued in favour of the respondent, National Australia Bank Ltd. The application was heard by Basten JA in the Court of Appeal of New South Wales. The core of the dispute concerned McCarthy's ability to present his case, particularly his desire to be represented by a lay advocate, and whether this, along with other alleged procedural unfairness, constituted arguable grounds for an appeal against the original possession order.

The primary legal issues before the court were whether McCarthy had established arguable grounds for leave to appeal the possession order, and whether he should be permitted to appear with a lay advocate. Specifically, the court had to consider if McCarthy was unable adequately to present his own case, and if there was a conflict of interest between him and any proposed lay advocate. The court also had to determine if the alleged procedural unfairness in not allowing him to appear with a lay advocate constituted an arguable ground for appeal.

Basten JA found that McCarthy had not established arguable grounds for leave to appeal. His Honour noted the absence of any arguable defence to the possession proceedings themselves. Regarding the application to appear with a lay advocate, Basten JA concluded that McCarthy had not demonstrated that he was unable adequately to present his own case, nor that there was a conflict of interest with a potential lay advocate. Consequently, the alleged procedural unfairness in not allowing such representation was not considered an arguable ground for appeal.

The applicant’s notice of motion filed on 3 August 2015 was dismissed, and the applicant was ordered to pay the respondent Bank’s costs of the motion.