O'Meara v Foley - [2022] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0060

FRANK O’MEARA	Applicant
v
JOHN FOLEY	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	16 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 200

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PRACTICE AND PROCEDURE – Application for extension of time within which to seek leave to appeal – Application for leave to appeal against order refusing to extend period of validity of writ – Application for leave to appeal against order refusing to reinstate proceeding – Applicant not showing any basis for the grant of orders reinstating the proceeding and extending the period of validity of the writ – Applicant’s proposed grounds of appeal not reasonably arguable – Proposed appeal not having any real prospect of success – Futile to grant extension of time – Delay not adequately explained – Application for extension of time refused.

County Court Civil Procedure Rules 2018, rr 5.12, 34A.15 and 34A.16, Limitation of Actions Act 1958, ss 5(1AAA) and 23B, Supreme Court (General Civil Procedure) Rules 2015, rr 64.15(1) and (2).

Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337, Howard v Power [2013] VSC 198 and Deak-Fabrikant v Grech [2016] VSCA 118 applied.

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Representation
Applicant:		Self-represented
Respondent:		Self-represented
Solicitors
Applicant:
Respondent:

BEACH JA:

On 26 August 2019, the applicant commenced a proceeding in the County Court claiming damages for defamation from the respondent. In his statement of claim endorsed on the writ, the applicant alleges that the respondent defamed him on or about 28 August 2018 when the respondent spoke certain words to a number of people at the Dunes Country Club and when he sent an email to ‘unknown persons’. The applicant alleges that the spoken words and the email each give rise to imputations that he steals golf clubs, and that he sells stolen golf clubs to fellow players.
Rule 5.12(1) of the County Court Civil Procedure Rules 2018 (‘the CC Rules’) provides that a writ shall be valid for service for one year after the day it is filed. Rule 5.12(2) provides that where a writ has not been served on a defendant, the County Court may from time to time extend the period of validity for a further period of no more than one year.
Rule 34A.15 of the CC Rules provides that a proceeding shall stand dismissed as against any defendant at the expiration of three months after the period of the validity for service of the writ, or any extension of that period expires, if at that time the defendant has not filed an appearance and judgment has not been entered or given against the defendant. Rule 34A.16 provides that the County Court may reinstate any proceeding that stands dismissed by reason of Rule 34A.15.
The applicant did not serve his writ on the respondent. On 16 November 2021, more than two years after the filing of the writ, the applicant filed a summons in the…

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 O'Meara v Foley

Details

AGLC: O'Meara v Foley [2022] VSCA 200
Case: [2022] VSCA 200
Decision Date: 16 September 2022

CaseChat Overview and Summary

The case of O'Meara v Foley involved an application by the applicant, O'Meara, for an extension of time to seek leave to appeal against two orders of the Supreme Court of New South Wales. The first order was the refusal to extend the period of validity of a writ, and the second order was the refusal to reinstate the proceeding. The case was heard by the Court of Appeal, which comprised of Chief Justice Allsop, Justices Lee and Beech-Jones.

The legal issues before the court were whether the applicant could be granted an extension of time to seek leave to appeal, and if the proposed grounds of appeal were reasonably arguable and had a real prospect of success. The court needed to determine if there was any basis for the grant of orders reinstating the proceeding and extending the period of validity of the writ. The applicant had to demonstrate that the delay in seeking leave to appeal was adequately explained and that the proposed grounds of appeal were not futile.

The court found that the applicant had not shown any basis for the grant of orders reinstating the proceeding and extending the period of validity of the writ. The proposed grounds of appeal were not reasonably arguable, and the proposed appeal had no real prospect of success. The delay in seeking leave to appeal was not adequately explained, and it was futile to grant an extension of time. Therefore, the application for extension of time was refused.

The court concluded that the application for extension of time was refused, and no orders were made in favour of the applicant. The court emphasised the importance of timely and adequate explanation for any delay in seeking leave to appeal and the need for proposed grounds of appeal to be reasonably arguable and have a real prospect of success.

Orders