McEvoy v Wagglens Pty Ltd - [2020] NSWSC 575

Supreme Court

New South Wales

Medium Neutral Citation: McEvoy v Wagglens Pty Ltd [2020] NSWSC 575
Hearing dates: 23 July 2019
Decision date: 15 May 2020
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1)   Grant leave to extend the time within which the plaintiff may file an appeal from the decision of the magistrate of 4 December 2018, so the plaintiff’s application filed on 11 February 2019 is deemed to be filed in time;

(2)   Refuse leave to appeal the order made in the Local Court at Hornsby on 4 December 2018 dismissing the plaintiff’s notice of motion;
(3)   Plaintiff to pay the defendants’ costs.
Catchwords:
APPEALS – appeal from Local Court to Supreme Court – extension of time to appeal – evidentiary basis for delay in filing summons – fairly arguable case – extension of time granted – summons deemed to be filed in time
APPEALS – appeal from Local Court to Supreme Court – leave to appeal interlocutory judgment – magistrate did not consider all relevant principles and submissions – whether matter should be remitted to Local Court – no injustice going beyond what is merely arguable – leave to appeal refused where order for new trial would be futile
Legislation Cited: Conveyancing Act 1919 (NSW), ss 7, 36C
Fair Work Act 2009 (Cth), s 550
Limitation Act 1969 (NSW), ss 14, 16
Local Court Act 2007 (NSW), s 40
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 36.15, 36.16, 50.3
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20
Empire Shipping v Owners of the Ship “Shin Kobe Maru” (1991) 32 FCR 78; [1991] FCA 641
Gibson v Drumm [2016] NSWCA 206
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jingalong Pty Ltd v Todd [2014] NSWCA 330
New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Category: Principal judgment
Parties: Fentin McEvoy (Plaintiff)
Wagglens Pty Ltd (First Defendant)
Roderick Cloonen Marr (Second Defendant)
Representation:
Counsel:
In person (Plaintiff)
S Balafoutis (Defendants)
Solicitors:
Wight & Strickland (Defendants)

File Number(s): 2019/45874
Decision under appeal

Court or tribunal:

Local Court

Date of Decision:

4 December 2018

Before:

Reiss LCM

File Number(s):

2018/00162719

Judgment

HIS HONOUR: On 11 February 2019, the plaintiff, Fentin McEvoy, filed a summons seeking an order to extend the time to file an appeal from a decision of the Local Court. The plaintiff also seeks leave to appeal that decision, and orders either setting aside the Local Court’s decision or remitting the matter back to the Local Court for determination.

Background

On 25 May 2011, the plaintiff entered into an employment contract with Wagglens Pty Ltd, the first defendant (“the employment contract”). Wagglens Pty Ltd is a…

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.

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Details

Case: [2020] NSWSC 575
Decision Date: 15 May 2020

CaseChat Overview and Summary

The appeal before the court involves McEvoy, the appellant, and Wagglens Pty Ltd, the respondent. The primary dispute centres on the respondent's application for an extension of time to appeal a decision made by the Local Court. McEvoy contested the extension, arguing that the delay in filing the summons was not adequately justified. The case was heard by the Supreme Court of New South Wales, which had to determine whether the extension should be granted based on the respondent's evidentiary basis for the delay and whether a fairly arguable case existed for the appeal.

The court had to resolve whether the respondent's application for an extension of time was justified and whether the respondent had demonstrated a fairly arguable case for appeal. Furthermore, the court needed to consider whether the magistrate had appropriately evaluated all relevant principles and submissions in granting the interlocutory judgment. The court also had to determine whether the matter should be remitted to the Local Court for reconsideration or if it was appropriate to refuse leave to appeal, potentially rendering an order for a new trial futile.

In its decision, the court found that the respondent had provided a satisfactory evidentiary basis for the delay in filing the summons and that a fairly arguable case existed for the appeal. The court concluded that while the magistrate may not have considered all relevant principles and submissions, the matter did not warrant a remittal to the Local Court as the injustice was merely arguable. Consequently, the court granted the extension of time, deeming the summons to be filed in a timely manner. The court also refused leave to appeal the interlocutory judgment, finding that ordering a new trial would be futile.

The final orders of the court were that the extension of time for the respondent to appeal was granted, and the summons was deemed to be filed in time. The court also refused leave to appeal the interlocutory judgment, stating that ordering a new trial would be futile. The decision underscored the importance of demonstrating a fairly arguable case and the necessity for the magistrate to consider all relevant principles and submissions in interlocutory judgments.

Orders