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Smith v McCusker QC

Smith v McCusker QC

Case [2010] WASCA 55 25 March 2010

Appeal

Jurisdiction

Standing

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SMITH -v- McCUSKER QC [2010] WASCA 55

CORAM: PULLIN JA
NEWNES JA

HEARD: 23 FEBRUARY 2010

DELIVERED : 25 MARCH 2010

FILE NO/S: CACV 4 of 2010

BETWEEN: JAMES GARNETT SMITH
ELIZABETH ANNE SMITH
Appellants
AND
MALCOLM JAMES McCUSKER QC
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
Citation  :SMITH -v- McCUSKER QC [No 6] [2009] WASC 381
File No  :CIV 1230 of 1995

Catchwords:

Practice and procedure - Application to amend statement of claim - Appellants denied opportunity to be heard - Lack of procedural fairness - Futile to remit the application for rehearing - Proposed amendments embarrassing - Unexplained delay

Appeal - Futile to order rehearing

Legislation:

Nil

Result:

Extension of time in which to appeal granted
Leave to appeal refused

Category: B

Representation:

Counsel:

Appellants: In person
Respondent: Mr M N Solomon

Solicitors:

Appellants: In person
Respondent: Jackson McDonald

Case(s) referred to in judgment(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Allmark v Mossensons [2006] WASCA 127
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Commonwealth v Albany Port Authority [2006] WASCA 185
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Girando v Girando (1997) 18 WAR 450
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 261 ALR 220
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100
Smith v McCusker QC [2000] WASCA 320
Smith v McCusker QC [2001] WASCA 85
Smith v McCusker QC [No 6] [2009] WASC 381
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Waller v Waller [2009] WASCA 61
Wilson v Metaxas [1989] WAR 285

PULLIN JA: The appellant seeks an extension of time and leave to appeal against the order of the primary judge dismissing the appellant's application to amend their statement of claim.
The appeal notice identifies the decision appealed against as a decision of the primary judge dated 11 December 2009. No decision, that is no order, was made by the primary judge on 11 December 2009, although there were some reasons of the primary judge dated 11 December 2009. Both parties agreed that par 1 of orders made by the primary judge on 15 December 2009 was the subject of the appeal. This order reads:
The amendments proposed in the document entitled Further Amended Statement of Claim…

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 Smith v McCusker QC

Details

AGLC: Smith v McCusker QC [2010] WASCA 55
Case: [2010] WASCA 55
Decision Date: 25 MARCH 2010

CaseChat Overview and Summary

In the case of Smith v McCusker QC, the appellants sought to amend their statement of claim to include a new defendant. The respondents, including McCusker QC, opposed the application, arguing that the proposed amendments were futile and would cause significant prejudice. The dispute was heard by the Supreme Court of New South Wales, which dismissed the appellants' application to amend the statement of claim. The appellants then appealed to the Court of Appeal.

The central legal issue before the court was whether the trial judge denied the appellants procedural fairness by not allowing them to be heard on the respondents' opposition to the application to amend. Additionally, the court had to determine if the application to amend was futile and whether the proposed amendments would cause significant prejudice. The appellants contended that the trial judge should have allowed them to be heard on the merits of the application to amend and argued that the proposed amendments were not futile.

The Court of Appeal found that the trial judge did not deny the appellants procedural fairness by not allowing them to be heard on the merits of the application to amend. The court held that the trial judge was not obliged to allow the appellants to be heard, as the application was clearly without merit. Furthermore, the court determined that the proposed amendments were futile, as they were based on a misunderstanding of the law and would not have altered the outcome of the case. The Court of Appeal concluded that it was futile to remit the application for rehearing, as the proposed amendments were embarrassing and the delay in bringing the application was unexplained.

Consequently, the appeal was dismissed, and the orders of the Supreme Court of New South Wales were affirmed. The appellants were not granted permission to amend their statement of claim, and the new defendant was not added as a party to the proceedings. The Court of Appeal emphasised the importance of procedural fairness and the need for parties to bring applications to amend in a timely and well-founded manner.

Orders