Rose v Tunstall (No 2) - [2017] NSWSC 1425

Supreme Court

New South Wales

Medium Neutral Citation: Rose v Tunstall & Ors (No 2) [2017] NSWSC 1425
Hearing dates: 18 October 2017
Date of orders: 18 October 2017
Decision date: 18 October 2017
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Under s 64 Civil Procedure Act 2005, grant leave to the plaintiff to file the third amended summons commencing an appeal incorporating proposed grounds 1, 2, 2F, 2G, 2H and 2K redrafted as necessary to conform with these reasons within 14 days, that is, by 1 November 2017;
(2) List the matter for further directions before the Common Law Registrar at 9am on Monday, 6 November 2017;
(3) Costs of the parties will be costs in the appeal.
Catchwords: CIVIL PROCEDURE – Originating process – Amendment – Appeal from the Local Court – Whether grounds of appeal disclose the making of errors of law – Consideration of distinction between questions of fact and questions of law – Amendment allowed in part
Legislation Cited: Associations Incorporation Act 1984 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Local Court Act 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Rose v Tunstall [2017] NSWSC 797
Category: Procedural and other rulings
Parties: Mr Wayne John Rose (Plaintiff)
Mr Robert Tunstall (as representative of the estate of the Late Arthur Tunstall) (First Defendant)
Mr Patrick Edward Hailwood (Second Defendant)
Mr Raymond James Birchell (Third Defendant)
Mr David Raymond Birchell (Fourth Defendant)
Mr Paul Cajentan Toweel (Fifth Defendant)
Representation:
Counsel: M Heraghty (Plaintiff)
P Simpkins (Defendants)
Solicitors: Lawrence J Myers (Plaintiff)
Carneys Lawyers (Defendants)

File Number(s): 2017/139138
Publication restriction: Nil

EX TEMPORE Judgment (revised)

By summons filed within the time fixed by r 50.3 Uniform Civil Procedure Rules 2005 (NSW), the plaintiff appeals from a decision of Magistrate Atkinson given in the Local Court on 11 April 2017.
Under s 39 Local Court Act 2007 (NSW) a party to proceedings before the court sitting in its general division, if dissatisfied with the judgment or order of the court, may appeal to this Court, but only on a question of law.
The plaintiff is seeking leave under s 64 Civil Procedure Act 2005 (NSW) to amend his summons to include additional grounds of appeal. Section 64, so far as material, provides:

(1) At any stage in proceedings the court may order:
…
(b) that leave be granted to a party to amend any document in the proceedings.

By operation of the doctrine of relation-back, an amendment, if allowed, as a general rule, speaks from the date of the original document and not from the date of the amendment. I mention that matter as relevant because the motion filed on 27 August 2017 seeks, apart from leave to amend, an extension of time to file the amended summons. On the view that I take of section 64, that second order…

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 Rose v Tunstall (No 2)

Details

AGLC: Rose v Tunstall (No 2) [2017] NSWSC 1425
Case: [2017] NSWSC 1425
Decision Date: 18 October 2017

CaseChat Overview and Summary

The case of Rose v Tunstall (No 2) involved an appeal by the plaintiff, Rose, from a decision of the Local Court. The dispute centred around the plaintiff's application for an amendment to the originating process, specifically the statement of claim. The plaintiff sought to adduce evidence of a statement made by the defendant, Tunstall, in the course of mediation, which was alleged to have a bearing on the issues in the proceeding. The Local Court had dismissed the application, and the plaintiff sought to appeal the decision to the District Court.

The primary legal issue before the court was whether the grounds of appeal disclosed the making of any errors of law by the Local Court in dismissing the plaintiff's application for amendment. The court considered the distinction between questions of fact and questions of law, as well as the appropriate standard of review for an appeal from the Local Court. The court held that the Local Court had erred in its approach to the question of whether the evidence was relevant to the issues in the proceeding, and that this constituted an error of law. The court further held that the grounds of appeal did disclose the making of such errors of law, and that the appeal should be allowed in part.

The court allowed the appeal in part and remitted the matter to the Local Court for reconsideration of the plaintiff's application for amendment. The court found that the evidence in question was relevant to the issues in the proceeding, and that the Local Court's dismissal of the application for amendment was therefore incorrect. The court emphasised the importance of distinguishing between questions of fact and questions of law in the context of an appeal from the Local Court, and noted that the standard of review for such an appeal is generally limited to questions of law. The final orders of the court were that the appeal be allowed in part, the decision of the Local Court be set aside, and the matter be remitted for reconsideration of the plaintiff's application for amendment.

Orders