O'Donnell v S Abbott; O'Donnell v D a Abbott - [2001] NSWCA 184

CITATION: O'Donnell v S Abbott; O'Donnell v D A Abbott [2001] NSWCA 184

FILE NUMBER(S): CA 40892/00; 40893/00

HEARING DATE(S): 15/06/01

JUDGMENT DATE:
21 June 2001

PARTIES :

Kerry Ann O'Donnell v Sylvia Abbott
Kerry Ann O'Donnell v Deborah Anne Abbott

JUDGMENT OF: Stein JA at 1; Ipp AJA at 2; Fitzgerald AJA at 27

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : 20996/94; 20997/94

LOWER COURT
JUDICIAL OFFICER : Bell J

COUNSEL: F S McAlary QC/W M Fitzsimmons (Appellants)
F Santisi (Respondents)

SOLICITORS: Abbott Tout (Appellants)
G H Healey & Co (Respondents)

CATCHWORDS: PRACTICE - Jurisdiction - Self-executing orders - Application for leave to appeal - Whether orders made by Master and entered by Deputy Registrar had effect - Powers of Registrar - orders of court - proceedings were dismissed by orders of Deputy Registrar and thus there was no jurisdiction for the orders to be later set aside or an extension of time granted. D

LEGISLATION CITED: Supreme Court Act 1970
Supreme Court Rules 1970

CASES CITED:
FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268
Bailey v Marinoff (1975) 125 CLR 529
DJL v Central Authority (2000) 74 ALJR 706

DECISION: (1) Applications for leave to appeal granted (2) Appeals upheld (3) Matters remitted to Bell J for determination according to law (4) Opponents to pay the claimant's costs of the appeal (5) The Opponents to have a certificate under the Suitors' Fund Act.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40892/00

CA 40893/00

SC 20996/94

SC 20997/94

STEIN JA

IPP AJA

FITZGERALD AJA

Thursday 21 June 2001

KERRY ANN O’DONNELL v SYLVIA ABBOTT

KERRY ANN O’DONNELL v DEBORAH ANNE ABBOTT

JUDGMENT

1 STEIN JA: I agree with Ipp AJA.

2 IPP AJA: These reasons relate to an application for leave to appeal and the appeal in each of the above matters. For present purposes the facts and circumstances relating to each matter are the same.

3 On 19 December 1994 the opponent in each case brought proceedings against the claimant for damages for personal injuries arising out of a motor vehicle collision that occurred on 16 January 1992.

4 On 28 February 1996 Master Greenwood made an order that the opponents supply the claimant with certain particulars. The learned Master ordered further that:

“If above orders are not complied with statement of claim is dismissed with costs by force of this order”.

5 The opponents failed to supply the requisite particulars by the stipulated date.

6 Towards the end of September 1996, the claimant, by notice of motion, sought orders that the opponents supply the particulars concerned within fourteen days and, in the alternative, that the opponents’ statements of claim be struck out.

7 On the return of the notice of motion, the matter came before the Prothonotary on 28 October 1996. The opponents were represented by Mr Reimer of counsel and the claimant was represented by Mr Fitzsimmons of counsel. The Prothonotary declined…

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: [2001] NSWCA 184
Decision Date: 21 June 2001

CaseChat Overview and Summary

The parties to this matter were O'Donnell (the claimant) and S Abbott and D A Abbott (the opponents). The dispute concerned the effect of orders made by a Deputy Registrar dismissing the claimant's proceedings, and the subsequent jurisdiction of the court to set aside those orders or grant an extension of time. The case was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the orders made by the Deputy Registrar, which dismissed the claimant's proceedings, were "self-executing" and therefore effective immediately, or if they required further action to take effect. This question was central to determining whether the court retained jurisdiction to later set aside those orders or grant an extension of time for the claimant to take further steps.

The Court of Appeal held that the orders made by the Deputy Registrar dismissing the proceedings were effective and binding. The court reasoned that a Registrar has the power to make orders of the court, and that once these orders were entered, they had the effect of dismissing the proceedings. Consequently, there was no jurisdiction for the court to subsequently set aside those orders or grant an extension of time. The applications for leave to appeal were granted, the appeals were upheld, and the matters were remitted to Bell J for determination according to law, with the opponents ordered to pay the claimant's costs of the appeal and to have a certificate under the Suitors' Fund Act.

Orders

Orders of the court

(1) Applications for leave to appeal granted (2) Appeals upheld (3) Matters remitted to Bell J for determination according to law (4) Opponents to pay the claimant's costs of the appeal (5) The Opponents to have a certificate under the Suitors' Fund Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	O'Donnell v S Abbott; O'Donnell v D A Abbott [2001] NSWCA 184
FILE NUMBER(S):	CA 40892/00; 40893/00
HEARING DATE(S):	15/06/01
JUDGMENT DATE:	21 June 2001
PARTIES :	Kerry Ann O'Donnell v Sylvia Abbott Kerry Ann O'Donnell v Deborah Anne Abbott
JUDGMENT OF:	Stein JA at 1; Ipp AJA at 2; Fitzgerald AJA at 27

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	20996/94; 20997/94
LOWER COURT JUDICIAL OFFICER :	Bell J

COUNSEL:	F S McAlary QC/W M Fitzsimmons (Appellants) F Santisi (Respondents)
SOLICITORS:	Abbott Tout (Appellants) G H Healey & Co (Respondents)
CATCHWORDS:	PRACTICE - Jurisdiction - Self-executing orders - Application for leave to appeal - Whether orders made by Master and entered by Deputy Registrar had effect - Powers of Registrar - orders of court - proceedings were dismissed by orders of Deputy Registrar and thus there was no jurisdiction for the orders to be later set aside or an extension of time granted. D
LEGISLATION CITED:	Supreme Court Act 1970 Supreme Court Rules 1970
CASES CITED:	FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 Bailey v Marinoff (1975) 125 CLR 529 DJL v Central Authority (2000) 74 ALJR 706
DECISION:	(1) Applications for leave to appeal granted (2) Appeals upheld (3) Matters remitted to Bell J for determination according to law (4) Opponents to pay the claimant's costs of the appeal (5) The Opponents to have a certificate under the Suitors' Fund Act.