Tahana v Secure Funding Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tahana v Secure Funding Pty Ltd [2013] NSWCA 19

Hearing dates:

7 February 2013

Decision date:

07 February 2013

Before:

Macfarlan JA at [1]; [12]
Barrett JA at [2]

Decision:

Application for extension of time and application for leave to appeal dismissed 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:

APPEAL - application for leave to appeal dismissed - no issue of principle

Legislation Cited:

Legal Aid Commission Act 1979

Category:

Procedural and other rulings

Parties:

Richard Tuahine Tahana (Applicant)
Secure Funding Pty Ltd (Respondent)

Representation:

Counsel:
Self-represented Applicant
M Suliman (Solicitor) (Respondent)
Solicitors:
Self-represented Applicant
Norton Rose Australia (Respondent)

File Number(s):

CA 2012/271406

 Decision under appeal 

Jurisdiction:

9111

Citation:

Secure Funding Pty Ltd v Richard Tahana

Date of Decision:

2012-05-04 00:00:00

Before:

Schmidt J

File Number(s):

SC 2011/69755

Judgment

1. MACFARLAN JA: I ask Barrett JA to deliver the first judgment.

1. BARRETT JA: The Court has declined to grant an adjournment of today's proceedings sought by Mr Tahana. It has taken the view that s 57 of the Legal Aid Commission Act 1979 does not require that an adjournment be granted and that the matter of adjournment therefore fell to be dealt with according to the Court's discretion unaffected by that section.

1. Section 57 of the Legal Aid Commission Act did not apply because of the special circumstances of the case. First among these is the view that has been reached that the applications before the Court of Appeal have no prospects of success. Added to that is the circumstance that while Mr Tahana relies on an undetermined application for legal aid which he says has been made, he has not put before the Court appropriate evidence of the making of the application so that any sound basis for findings is absent. There is also the point that several previous applications for legal aid have been made in relation to the possession matter. There have been at least two refusals of legal aid and there is no reason to think that the currently outstanding application would meet with any other result.

1. The applications for legal aid have not been made in a timely way. For example, the summons seeking leave to appeal was filed on 30 August 2012 by Mr Tahana himself. He managed to take that step without legal aid but did not make any application for legal aid until 18 October 2012, almost seven weeks later. It also appears from the documents that there was a refusal of legal aid on 5 January 2013 (it is said in relation to an application…