McGinn v Cranbrook School (No 2) - [2015] NSWCA 419

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McGinn v Cranbrook School (No 2) [2015] NSWCA 419
Hearing dates: On the papers
Decision date: 22 December 2015
Before: Leeming JA
Decision:
The notice of motion filed 4 December 2015 is dismissed with costs.

Catchwords: PRACTICE – application to set aside order – allegation order made irregularly, illegally or against good faith – UCPR r 36.15 – no basis for setting aside order demonstrated
Legislation Cited: Supreme Court Act 1970 (NSW), ss 46, 101
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.15, 51.61
Cases Cited: AB v State of New South Wales [2014] NSWCA 243
Clarke v State of New South Wales [2015] NSWCA 27
Donnelly v Australia and New Zealand Banking Corporation [2015] NSWCA 233
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
N’Ge-Sala v NSW Police Force [2015] NSWCA 76
Pi v Pierce and Attorney General for NSW [2015] NSWCA 118
Wang v Johnston Vaughan [2015] NSWCA 35
Category: Procedural and other rulings
Parties: Sophia McGinn (Applicant)
Cranbrook School (Respondent)
Representation: Counsel:
Applicant in person

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

Judgment

LEEMING: On 30 November 2015 I dismissed an appeal purportedly brought as of right by Ms Sophia McGinn, 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). I did so in accordance with Macatangay v New South Wales (No 2) [2009] NSWCA 272, which I regarded as authority, binding on me, that an order pursuant to r 13.4 is interlocutory, such that an appeal lies only with leave. As much was pointed out to Ms McGinn in advance of the hearing by the respondent School, and by the Registrar of this Court, as well as by me in argument.
By notice of motion filed 4 December 2015, Ms McGinn seeks the following orders:

“1. Set aside the judgment by Leeming JA on 30 November 2015 pursuant to UCPR r 36.15(1), on the basis that the judgment was entered irregularly as no affidavit was filed, was given illegally as no evidence was before the court, and was given against good faith.
2. The Respondent’s Notice of Motion filed on 9 November 2015 be dismissed on the basis that no evidence and/or no admissible evidence was tendered in support of the motion.
3. Costs.”

In order to explain the basis on which Ms McGinn seeks those orders, it is necessary to describe the way in which the hearing on 30 November 2015 occurred. The School had moved, by notice of motion filed on 9 November 2015, to dismiss Ms McGinn’s…

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.

Continue reading McGinn v Cranbrook School (No 2)

Details

AGLC: McGinn v Cranbrook School (No 2) [2015] NSWCA 419
Case: [2015] NSWCA 419
Decision Date: 22 December 2015

CaseChat Overview and Summary

The applicant, McGinn, sought to set aside an order made by the court. Cranbrook School was the respondent. The dispute concerned an application to set aside a prior court order, with McGinn alleging the order was made irregularly, illegally, or against good faith. The matter was heard by Leeming JA in the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the applicant had demonstrated a sufficient basis to set aside the existing order pursuant to rule 36.15 of the Uniform Civil Procedure Rules (UCPR). This rule permits the setting aside of an order in certain circumstances, including where it was obtained irregularly, illegally, or in bad faith.

Leeming JA found that no basis for setting aside the order had been demonstrated by the applicant. The court applied the principles governing applications to set aside orders, requiring the applicant to establish a clear irregularity or impropriety in the making of the original order. In the absence of such evidence, the application could not succeed.

Consequently, the notice of motion filed by McGinn on 4 December 2015 was dismissed, and McGinn was ordered to pay the costs of Cranbrook School.

Orders

Orders of the court

The notice of motion filed 4 December 2015 is dismissed with costs.

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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Medium Neutral Citation:	McGinn v Cranbrook School (No 2) [2015] NSWCA 419
Hearing dates:	On the papers
Decision date:	22 December 2015
Before:	Leeming JA
Decision:	The notice of motion filed 4 December 2015 is dismissed with costs.
Catchwords:	PRACTICE – application to set aside order – allegation order made irregularly, illegally or against good faith – UCPR r 36.15 – no basis for setting aside order demonstrated
Legislation Cited:	Supreme Court Act 1970 (NSW), ss 46, 101 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.15, 51.61
Cases Cited:	AB v State of New South Wales [2014] NSWCA 243 Clarke v State of New South Wales [2015] NSWCA 27 Donnelly v Australia and New Zealand Banking Corporation [2015] NSWCA 233 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 N’Ge-Sala v NSW Police Force [2015] NSWCA 76 Pi v Pierce and Attorney General for NSW [2015] NSWCA 118 Wang v Johnston Vaughan [2015] NSWCA 35
Category:	Procedural and other rulings
Parties:	Sophia McGinn (Applicant) Cranbrook School (Respondent)
Representation:	Counsel: Applicant in person
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