McEvoy v Wagglens Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McEvoy v Wagglens Pty Ltd [2020] NSWCA 330

Hearing dates:

14 December 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Before:

Basten JA

Decision:

Notice of motion filed 8 December 2020 dismissed with costs.

Catchwords:

APPEAL – stay – application for stay of garnishee pending appeal – appeal from judgment in Division on appeal from Local Court – respondent seeking to enforce costs orders – garnishee order issued – whether application for leave had reasonable prospects of success – small amount relative to statutory threshold for appeal as of right – no statement of specific grounds – likelihood of success leading to reversal of costs orders – evidence of non-recoverability if payments obtained

PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to issue for purposes of appeal – need to show arguable case for adducing further evidence on appeal

PRACTICE AND PROCEDURE – appeal – submissions – application for waiver of rule limiting length of summary of argument – straightforward factual case – no basis for lengthy submissions

Legislation Cited:

Supreme Court Act 1970 (NSW), s 75A

Category:

Procedural and other rulings

Parties:

Fentin McEvoy (Applicant)
Wagglens Pty Ltd (First Respondent)
Roderick Cloonan Marr (Second Respondent)

Representation:

Counsel:
Applicant unrepresented
Ms K MacDonald (Solicitor) (Respondents)

Solicitors:
Applicant unrepresented
KMD Law and Advisory (Respondents)

File Number(s):

2020/173957

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2020] NSWSC 575

Date of Decision:

15 May 2020

Before:

Ierace J

File Number(s):

2019/45874

Judgment

1. BASTEN JA: The applicant, Fentin McEvoy, brought proceedings in the Local Court seeking to recover an amount of $26,250 from the first respondent, Wagglens Pty Ltd. The amount was claimed as unpaid wages due under a 12 month contract of employment which ran from 25 May 2011 to 25 May 2012. The matter had a chequered history in the Local Court; the claim was finally dismissed on 23 October 2018. A reopening application was dismissed on 4 December 2018.

2. On 11 February 2019, the applicant filed a summons seeking leave to appeal in the Common Law Division. (The summons and a number of other documents are missing from the white folder.) Judgment was delivered in the Common Law Division on 15 May 2020, refusing leave to appeal.

3. A notice of intention to seek leave to appeal from that decision was filed 11 June 2020, although the summons suggests it was served on 18 June 2020, a few days out of time. More significantly, the summons seeking leave to appeal was not filed until 20 October 2020, that is about two months out of time. There has been an exchange of affidavits between the parties which have been e-filed out of hours, and even the night before the hearing, which seems to be becoming a practice. I have not read the affidavits, which, it appears, related primarily to explaining issues of timing of the filing of documents…