Ms Northey's notice of motion filed on 12 December 2011 is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PROCEDURE - application for order setting aside order of dismissal for want of prosecution - whether order of dismissal made "irregularly" because of non-observance of rule 18.3 - order made in absence of party - whether any factor making it unjust that the order should stand - application dismissed
Janice Louise Northey - Applicant Bega Valley Shire Council - Respondent
Representation
- Counsel:
Mr C J M Palmer - Applicant Mr E G Petersen - Respondent
- Solicitors:
Hassett Dixon - Applicant Andrew Warren Associates - Respondent
File number(s):
2008/00281995
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction:
JUDGMENT
This is an application by Janice Northey for an order setting aside an order made by Tobias JA on 21 March 2011 dismissing with costs an appeal initiated by her by notice of appeal filed on 28 July 2010. The appeal was dismissed under rule 12.7 of the Uniform Civil Procedure Rules2005 for want of prosecution with due dispatch. It related to an order of Brereton J in the Equity Division dismissing with costs an application by Ms Northey for a permanent injunction restraining Bega Valley Council from demolishing a particular fence.
The present application is advanced under rule 36.15(1) and rule 36.16(2)(b) of the Uniform Civil Procedure Rules , it being Ms Northey's contention that one of those rules justifies the order she seeks.
Those rules are as follows:
Rule 36.15(1):
"A judgment or order of the court in any proceedings may,…
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
AGLC
Northey v Bega Valley Shire Council [2012] NSWCA 28
Case
[2012] NSWCA 28
Decision Date
CaseChat Overview and Summary
Ms Northey sought to set aside an order dismissing her proceedings against Bega Valley Shire Council for want of prosecution. The application was heard by Barrett JA in the Court of Appeal of New South Wales.
The primary legal issue was whether the order of dismissal, made in Ms Northey's absence, was made "irregularly" due to non-compliance with rule 18.3 of the Uniform Civil Procedure Rules 2005, and if so, whether any factor made it unjust for the order to stand.
Barrett JA considered the meaning of "irregularly" in the context of rule 18.3, which deals with the dismissal of proceedings for want of prosecution. His Honour found that the order was not irregular simply because it was made in the absence of a party, particularly where the party had been notified of the hearing. The court's power to set aside an order under rule 36.15 is discretionary and requires a compelling reason, such as irregularity or injustice. In this instance, no such compelling reason was established.
Ms Northey's notice of motion was dismissed with costs.
Orders
Orders of the court
Ms Northey's notice of motion filed on 12 December 2011 is dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]