Odlum v Friend (No 2)

Case [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

  1. 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

  1. 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.

  2. 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.

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

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

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

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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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