Odlum v Friend (No 2) - [2024] NSWCA 252

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Odlum v Friend (No 2) [2024] NSWCA 252
Hearing dates: On the papers
Decision date: 25 October 2024
Before: Leeming JA; Mitchelmore JA; Harrison CJ at CL
Decision:
Notice of motion filed 5 September 2024 dismissed with costs.

Catchwords:
PRACTICE – application to reopen under UCPR r 36.16 – no basis for reopening

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16

Cases Cited:
Kable v State of New South Wales (No 2) [2012] NSWCA 361
Majak v Rose (No 5) [2017] NSWCA 238
Mohareb v State of New South Wales (No 2) [2024] NSWCA 69
Odlum v Friend & Anor [2022] NSWSC 574
Odlum v Friend [2024] NSWCA 159

Category: Consequential orders
Parties: Judith Odlum (Applicant)
Stephen Friend t/as Friend and Co Lawyers (First Respondent)
Andrew Paterson (Second Respondent)
Representation:
Counsel:
Applicant (Self-represented)
G Marsden (Respondents)
Solicitors:
Carter Newell Lawyers (Second Respondent)

File Number(s): 2022/00180452
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Odlum v Friend & Anor [2022] NSWSC 574

Date of Decision:

12 May 2022

Before:

Cavanagh J

File Number(s):

2017/00378597

Judgment

THE COURT: By judgment delivered on 3 July 2024 and entered on that date, this Court dismissed the appeal brought by Ms Judith Odlum from the dismissal of her claim against her former solicitor and barrister: Odlum v Friend [2024] NSWCA 159. Ms Odlum appeared unrepresented in that appeal. She also lacks the benefit of legal representation in the current application, which is a notice of motion filed on 5 September 2024, although on 17 July 2024, 14 days after this Court’s decision was delivered, she wrote to the solicitors acting for each of the first and second respondents as follows:

This [is] to inform you that I have lodged a NOM form under UCPR r 36.16 and 36.15 and within 14 days of the former Judgement date. I can send a sealed copy once provided with it.
Judith Odlum

Pausing there, lodgement of court process such as a notice of motion is different from filing it. Speaking generally, a document is taken to have been filed when it is lodged for filing, but r 4.10(3) contains an important exception, which is when the acceptance of the document is subsequently refused by the court or by an officer of the court. Rule 4.10(5) authorises an officer of the court to refuse to accept a document for filing, in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment.
Ms Odlum’s motion contains a stamp representing the Court seal and the notation:

This document was eFiled on 05 September 2024. Final acceptance has been given.
R H Kenna (L.S.)
Principal Registrar & Chief Executive Officer.

The point of mentioning these procedural details is that this Court has only limited…

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 Odlum v Friend (No 2)

Details

AGLC: Odlum v Friend (No 2) [2024] NSWCA 252
Case: [2024] NSWCA 252
Decision Date: 25 October 2024

CaseChat Overview and Summary

The parties to this proceeding were Odlum (the applicant) and Friend (the respondent). The dispute concerned an application by the applicant to reopen a previous decision of the court pursuant to rule 36.16 of the Uniform Civil Procedure Rules (UCPR). The application was heard by the Court of Appeal of New South Wales, comprising Leeming JA, Mitchelmore JA, and Harrison CJ at CL.

The primary legal issue before the court was whether there was a sufficient basis to grant the applicant's request to reopen the previous decision under UCPR r 36.16. This rule permits a court to set aside or vary an order in certain circumstances, and the court was required to determine if the applicant's circumstances met the threshold for such an intervention.

The court considered the principles governing applications to reopen orders under UCPR r 36.16. It was held that the applicant had not demonstrated any grounds that would justify the court exercising its discretion to reopen the matter. The court found no basis for the application, implying that the applicant failed to establish the necessary criteria for setting aside or varying the prior order.

Consequently, the notice of motion filed by the applicant on 5 September 2024 was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

Notice of motion filed 5 September 2024 dismissed with costs.

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.

Medium Neutral Citation:	Odlum v Friend (No 2) [2024] NSWCA 252
Hearing dates:	On the papers
Decision date:	25 October 2024
Before:	Leeming JA; Mitchelmore JA; Harrison CJ at CL
Decision:	Notice of motion filed 5 September 2024 dismissed with costs.
Catchwords:	PRACTICE – application to reopen under UCPR r 36.16 – no basis for reopening
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16
Cases Cited:	Kable v State of New South Wales (No 2) [2012] NSWCA 361 Majak v Rose (No 5) [2017] NSWCA 238 Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 Odlum v Friend & Anor [2022] NSWSC 574 Odlum v Friend [2024] NSWCA 159
Category:	Consequential orders
Parties:	Judith Odlum (Applicant) Stephen Friend t/as Friend and Co Lawyers (First Respondent) Andrew Paterson (Second Respondent)
Representation:	Counsel: Applicant (Self-represented) G Marsden (Respondents) Solicitors: Carter Newell Lawyers (Second Respondent)
File Number(s):	2022/00180452
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Odlum v Friend & Anor [2022] NSWSC 574 Date of Decision: 12 May 2022 Before: Cavanagh J File Number(s): 2017/00378597