Seidler v Carroll and O'Dea - [2014] NSWCA 48

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Seidler v Carroll & O'Dea [2014] NSWCA 48
Hearing dates: 10 March 2014
Decision date: 11 March 2014
Before: McColl JA (at [1]); Macfarlan JA (at [33])
Decision:
(1) Dismiss the summons seeking leave to appeal with costs.
(2) Dismiss the appeal filed on 26 September 2013 with costs.
(3) Dismiss the amended notice of motion with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - application for leave to appeal - no error of principle demonstrated
APPEAL - whether appeal from interlocutory decisions - leave to appeal from refusal of leave to amend statement of claim and dismissal of proceedings for want of dispatch - appeal incompetent
Legislation Cited: Supreme Court Act 1970 NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: House v King [1936] HCA 40; (1936) 55 CLR 499
National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) [2001] FCA 237; (2001) 183 ALR 700
Paramasivam v Sabanathan [2013] NSWCA 362
Category: Principal judgment
Parties: Kathryn Seidler (applicant)
Carroll & O'Dea (first - fifteenth, seventeenth - eighteenth respondents)
Robert Harrington (sixteenth respondent)
Avant Insurance Limited and Dr Chris Eliades (nineteenth and twenty-second respondents to Amended Notice of Motion)
Bayer Australia Limited (twentieth respondent to Amended Notice of Motion)
Christopher Brierley (thirty-first respondent to Amended Notice of Motion)
Michael Nguyen (thirty-second respondent to Amended Notice of Motion)
HWL Ebsworth Pty Ltd (thirty-third respondent to Amended Notice of Motion
Michael Windsor (thirty-fourth respondent to Amended Notice of Motion)
Representation: Counsel:
Applicant in person
M Windsor SC for Carroll & O'Dea, Christopher Brierley (thirty-first respondent to Amended Notice of Motion), Michael Nguyen (thirty-second respondent to Amended Notice of Motion), HWL Ebsworth (thirty-third respondent to Amended Notice of Motion), and Michael Windsor SC (thirty-fourth respondent to Amended Notice of Motion)
C Purdy for Robert Harrington
M Lynch for Avant Insurance Limited and Dr Chris Eliades (nineteenth and twenty-second to Amended Notice of Motion)
N Bender for Bayer Australia Limited (twentieth Amended Notice of Motion)
Solicitors:
Applicant in person
HWL Ebsworth Lawyers - first to fifteenth and seventeenth respondents, thirty-first, thirty-second, thirty-third and thirty-fourth respondents to Amended Notice of Motion
Moray & Agnew - sixteenth respondent
Avant Law Pty Ltd - nineteenth and twenty-second respondents
Baker & McKenzie - twentieth respondent

File Number(s): 2013/291278, 2013/377736
Publication restriction: No
Decision under appeal

Citation:

Seidler v Carroll & O'Dea [2013] NSWSC 338
Seidler v Carroll & O'Dea, 10 May 2013
Seidler v Carroll & O'Dea (No 2) [2013] NSWSC 1172

Before:

McCallum J

File Number(s):

2011/372531

Judgment

McCOLL JA: This is an application…

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: [2014] NSWCA 48
Decision Date: 11 March 2014

CaseChat Overview and Summary

Seidler (the appellant) sought leave to appeal from interlocutory decisions of the primary judge made in proceedings against Carroll and O'Dea (the respondents). The dispute concerned the appellant's attempts to amend a statement of claim and the dismissal of the proceedings for want of dispatch. The appeal was heard by McColl and Macfarlan JJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the appeal was competent, given that it sought to appeal interlocutory decisions, and whether any error of principle had been demonstrated by the appellant. Specifically, the court considered whether leave to appeal should be granted from the refusal of leave to amend the statement of claim and the dismissal of the proceedings for want of dispatch.

The Court of Appeal found that the appeal was incompetent. Their Honours reasoned that the decisions under appeal were interlocutory in nature, and the appellant had not demonstrated any error of principle that would warrant granting leave to appeal. Consequently, the court dismissed the summons seeking leave to appeal and the appeal itself, along with the amended notice of motion, ordering the appellant to pay the respondents' costs in each instance.

Orders

Orders of the court

(1) Dismiss the summons seeking leave to appeal with costs.

(2) Dismiss the appeal filed on 26 September 2013 with costs.

(3) Dismiss the amended notice of motion with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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:	Seidler v Carroll & O'Dea [2014] NSWCA 48
Hearing dates:	10 March 2014
Decision date:	11 March 2014
Before:	McColl JA (at [1]); Macfarlan JA (at [33])
Decision:	(1) Dismiss the summons seeking leave to appeal with costs. (2) Dismiss the appeal filed on 26 September 2013 with costs. (3) Dismiss the amended notice of motion with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - application for leave to appeal - no error of principle demonstrated APPEAL - whether appeal from interlocutory decisions - leave to appeal from refusal of leave to amend statement of claim and dismissal of proceedings for want of dispatch - appeal incompetent
Legislation Cited:	Supreme Court Act 1970 NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	House v King [1936] HCA 40; (1936) 55 CLR 499 National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) [2001] FCA 237; (2001) 183 ALR 700 Paramasivam v Sabanathan [2013] NSWCA 362
Category:	Principal judgment
Parties:	Kathryn Seidler (applicant) Carroll & O'Dea (first - fifteenth, seventeenth - eighteenth respondents) Robert Harrington (sixteenth respondent) Avant Insurance Limited and Dr Chris Eliades (nineteenth and twenty-second respondents to Amended Notice of Motion) Bayer Australia Limited (twentieth respondent to Amended Notice of Motion) Christopher Brierley (thirty-first respondent to Amended Notice of Motion) Michael Nguyen (thirty-second respondent to Amended Notice of Motion) HWL Ebsworth Pty Ltd (thirty-third respondent to Amended Notice of Motion Michael Windsor (thirty-fourth respondent to Amended Notice of Motion)
Representation:	Counsel: Applicant in person M Windsor SC for Carroll & O'Dea, Christopher Brierley (thirty-first respondent to Amended Notice of Motion), Michael Nguyen (thirty-second respondent to Amended Notice of Motion), HWL Ebsworth (thirty-third respondent to Amended Notice of Motion), and Michael Windsor SC (thirty-fourth respondent to Amended Notice of Motion) C Purdy for Robert Harrington M Lynch for Avant Insurance Limited and Dr Chris Eliades (nineteenth and twenty-second to Amended Notice of Motion) N Bender for Bayer Australia Limited (twentieth Amended Notice of Motion) Solicitors: Applicant in person HWL Ebsworth Lawyers - first to fifteenth and seventeenth respondents, thirty-first, thirty-second, thirty-third and thirty-fourth respondents to Amended Notice of Motion Moray & Agnew - sixteenth respondent Avant Law Pty Ltd - nineteenth and twenty-second respondents Baker & McKenzie - twentieth respondent
File Number(s):	2013/291278, 2013/377736
Publication restriction:	No
Decision under appeal	Citation: Seidler v Carroll & O'Dea [2013] NSWSC 338 Seidler v Carroll & O'Dea, 10 May 2013 Seidler v Carroll & O'Dea (No 2) [2013] NSWSC 1172 Before: McCallum J File Number(s): 2011/372531