McGinn v Cranbrook School

Case [2016] NSWCA 226

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: McGinn v Cranbrook School [2016] NSWCA 226
Hearing dates:16 August 2016
Decision date: 25 August 2016
Before: Beazley P at [1]
Gleeson JA at [2]
Simpson JA at [42]
Decision:

(1) Applicant’s notice of motion filed 17 June 2016 be dismissed;
(2) Applicant to pay the respondent’s costs of the motion.

Catchwords: APPEAL AND NEW TRIAL - appeal - practice and procedure - New South Wales- review of decision of single judge of appeal – nature of hearing – Supreme Court Act s 46(4) - where appeal dismissed as incompetent – where appeal concerned summary dismissal order under UCPR 13.4 – whether order interlocutory – whether leave required under Supreme Court Act 1970 s 101(2)(e) – where re-opening application dismissed by single judge of appeal – whether relevant error demonstrated – whether UCPR r 36.15(1) applicable – where allegation that respondents’ submissions misled the Court
Legislation Cited: Civil Procedure Act 2005 (NSW) s 101
Court Suppression and Non-publication Orders Act 2010 (NSW)
Supreme Court Act 1970 (NSW) s 19, 46, 101(2)(e), 105, 106, 107
Uniform Civil Procedure Rules 2005 r 13.1, 13.4, 42.7, 36.15, 51.2, 51.10, 51.41, 51.44, 51.53, 51.61
Cases Cited: Clarke v State of New South Wales [2015] NSWCA 27
Kwon v Cha; Kwon v O’Neill [2015] NSWCA 111
Macatangay v New South Wales (No 2) [2009] NSWCA 272
McGinn v Cranbrook School [2015] NSWCA 378
McGinn v Cranbrook School (No 2) [2015] NSWCA 419
McGinn v Cranbrook School (No 2) [2015] NSWSC 1485
McGinn v Cranbrook School [2016] HCA SL 50
Pi v Pierce and Attorney General for NSW [2015] NSWCA 118
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143
Wang v Johnston Vaughan [2015] NSWCA 35
Category:Principal judgment
Parties: Sophia McGinn (Appellant)
Cranbrook School (Respondent)
Representation:

Counsel:
J A Watson/ R J May (Respondent)

  Solicitors:
Applicant (Self-represented)
Fraser Clancy Lawyers (Respondent)
File Number(s):2015/299498
 Decision under appeal 
Court or tribunal:
Court of Appeal
Citation:
[2015] NSWCA 419
Date of Decision:
22 December 2015
Before:
Leeming JA
File Number(s):
2015/299498

Judgment

  1. BEAZLEY P: I have had the advantage of reading in draft Gleeson JA’s reasons in this matter. I agree with his Honour’s reasons and proposed orders.

  2. GLEESON JA: Before the Court is a review of two decisions of Leeming JA given: on 30 November 2015, dismissing an appeal purportedly brought as of right as incompetent, and ordering the appellant, Ms Sophia McGinn, to pay the respondent’s costs of the appeal on an indemnity basis (McGinn v Cranbrook School [2015] NSWCA 378); and on 22 December 2015, dismissing with costs a notice of motion filed 4 December 2015 by which Ms McGinn sought to set aside the earlier judgment (McGinn v Cranbrook School (No 2) [2015] NSWCA 419).

  3. The orders of Leeming JA were made under the powers conferred upon a single Judge…

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Details
AGLC
McGinn v Cranbrook School [2016] NSWCA 226
Case
[2016] NSWCA 226
Decision Date

CaseChat Overview and Summary

The applicant, McGinn, appealed to the Court of Appeal of the Supreme Court of New South Wales against a summary dismissal order made under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). The appeal was dismissed by a single judge of appeal as incompetent, and McGinn sought to re-open that decision. The appeal before the full bench concerned the nature of the hearing before the single judge and whether the order of summary dismissal was interlocutory, thus requiring leave to appeal under section 101(2)(e) of the *Supreme Court Act 1970* (NSW). McGinn also alleged that the respondents' submissions had misled the Court.

The primary legal issues before the Court of Appeal were whether the single judge of appeal erred in dismissing McGinn's appeal as incompetent, and whether the re-opening application demonstrated relevant error. Central to these issues was the determination of whether the summary dismissal order was interlocutory or final, and consequently, whether leave to appeal was required. The Court also considered the applicability of rule 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) in relation to the re-opening application.

The Court of Appeal held that the summary dismissal order was interlocutory, meaning that leave to appeal was required under section 101(2)(e) of the *Supreme Court Act 1970* (NSW). As leave had not been granted, the appeal to the single judge was incompetent. The Court found no relevant error in the single judge's decision to dismiss the appeal on this basis. Furthermore, the Court found that the applicant had not demonstrated that the respondents' submissions had misled the Court.

Accordingly, the applicant's notice of motion filed on 17 June 2016 was dismissed, and the applicant was ordered to pay the respondent's costs of the motion.

Orders

Orders of the court

(1) Applicant’s notice of motion filed 17 June 2016 be dismissed;

(2) Applicant to pay the respondent’s costs of the motion.

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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