McGinn v Cranbrook School

[2015] NSWCA 378

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	McGinn v Cranbrook School [2015] NSWCA 378
Hearing dates:	30 November 2015
Decision date:	30 November 2015
Before:	Leeming JA
Decision:	(1) The notice of appeal filed 13 October 2015 be dismissed as incompetent.  (2) The appellant pay the respondent’s costs of the appeal on an indemnity basis.
Catchwords:	APPEAL – competency – appeal brought purportedly as of right from summary dismissal of proceedings – appeal dismissed as incompetent
Legislation Cited:	Supreme Court Act 1970 (NSW), ss 46, 101 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 51.41
Cases Cited:	AB v State of New South Wales [2014] NSWCA 243 Macatangay v New South Wales (No 2) [2009] NSWCA 272 McGinn v Cranbrook School (No 2) [2015] NSWSC 1485 McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427
Category:	Procedural and other rulings
Parties:	Sophia McGinn (Applicant) Cranbrook School (Respondent)
Representation:	Counsel: Applicant in person R May (Respondent)   Solicitors: Fraser Clancy Solicitors (Respondent)
File Number(s):	2015/299498
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2015] NSWSC 1485 Date of Decision: 2 and 8 October 2015 Before: Hall J File Number(s): 2015/214153

ex tempore Judgment

1. LEEMING JA: Ms Sophia McGinn has purported to appeal, as of right, from orders made by a judge sitting in the Common Law Division of the Supreme Court, dismissing proceedings brought by her pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), on the basis that they did not disclose a reasonable cause of action and were an abuse of process of the court: McGinn v Cranbrook School (2 October 2015). It is not necessary to summarise the details of the allegations made in those proceedings for the limited purpose of determining the application which has come before me. However, I should note that the primary judge stated in a supplementary judgment, McGinn v Cranbrook School (No 2) [2015] NSWSC 1485, at [2]:

“The proceedings did not otherwise allege or involve:

(1) impropriety by conduct by any members of the staff of the defendant towards students or to any other person, or

(2) any issue as to the conduct of the plaintiff's son, a young person. Insofar as the evidence enables any conclusion to be made concerning him, it indicates he is a young person of unblemished character.”

2. Nothing that either party has written or said has called into question any aspect of that summary.

3. After filing her notice of appeal on 13 October 2015, the lawyers acting for the respondent School advised Ms McGinn that s 101(2)(e) of the Supreme Court Act 1970 (NSW) applied to the interlocutory judgment in its favour from which she had purported to appeal. They referred her to this Court’s decision in Macatangay v New South Wales (No 2) [2009] NSWCA 272, which states, at [13], in respect of…