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Thomson v Young

Thomson v Young

Case [2013] NSWCA 300 5 September 2013

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Thomson v Young [2013] NSWCA 300
Hearing dates: 5 September 2013
Decision date: 05 September 2013
Before: Leeming JA
Decision:
Notice of Motion dated 4 September 2013 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: PRACTICE AND PROCEDURE - application for stay of proceedings in District Court pending determination of summons seeking leave to appeal - applicable test - stay refused
Legislation Cited: Civil Liability Act 2002
Cases Cited: Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Paul v Cooke [2012] NSWSC 840
Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369
Symonds v Egan National Valuers (NSW) Pty Ltd (unreported, 26 February 1996)
Category: Interlocutory applications
Parties: Colleen Joy Thomson (Applicant)
Ella Anne Young (Respondent)
Representation: Counsel:
EG Romaniuk; E Grotte (Applicant)
DR Toomey (Respondent)
Solicitors:
Moray & Agnew (Applicant)
MBT Lawyers (Respondent)

File Number(s): 2013/268555
Decision under appeal

Date of Decision:

2013-09-02 00:00:00

Before:

Neilson DCJ

File Number(s):

2012/387904

EX TEMPORE Judgment

Late yesterday afternoon proceedings were commenced in this Court seeking leave to appeal from an interlocutory decision of Neilson DCJ given in Coffs Harbour on Monday the reasons for which became available to the parties yesterday evening. His Honour partly refused an application brought by the defendant to amend her defence. Although that was the form of the application, its substance was a rejection of an application to vacate a hearing set down some months ago which is either to commence later this morning or has already commenced (it is now 10.35am). Initially I was asked to determine the application before me, which is a stay of the proceedings in the District Court pending the determination of the summons for leave to appeal, prior to 10am. However, argument has proceeded for the better part of an hour and I will determine it now as best I can.

The procedural background is summarised in detail in the reasons of the primary judge and may be simplified for present purposes. By motion dated 22 August 2013 the defendant sought to amend her defence to allege novus actus interveniens. The precise terms of the amendment and the original defence are not in the papers available to me. I should say here that both Mr Romaniuk who appeared for the applicant and Mr Toomey who appeared for the respondent have in the very urgent circumstances of the case given considerable assistance to its speedy resolution this morning and none of the deficiencies…

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 Thomson v Young

Details

AGLC: Thomson v Young [2013] NSWCA 300
Case: [2013] NSWCA 300
Decision Date: 05 September 2013

CaseChat Overview and Summary

In *Thomson v Young*, the applicant sought a stay of proceedings in the District Court pending the determination of a summons seeking leave to appeal. The matter came before Leeming JA in the Court of Appeal of New South Wales.

The primary legal issue before the Court was the applicable test for granting a stay of proceedings in the District Court pending the determination of a summons seeking leave to appeal to the Court of Appeal.

Leeming JA considered the principles governing the grant of a stay, noting that the applicant bore the onus of demonstrating that a stay was warranted. The Court applied the established principles for granting a stay, which require a strong case to be made out. In this instance, the applicant failed to satisfy the threshold for the grant of a stay.

The Notice of Motion dated 4 September 2013 was dismissed with costs.

Orders

Orders of the court

Notice of Motion dated 4 September 2013 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.]

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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Actions

Citations

Thomson v Young [2013] NSWCA 300

Most Recent Citation

National Retail Association v Fair Work Commission (No 2) [2014] FCA 664

Cases Citing This Decision

Frugtniet v Mansfield as trustee for the bankrupt estate of Frugtniet [2025] FCA 1137
Citation 1 (Para 10)

…opportunity for full consideration of the appeal: Nikolaides v Legal Services Commissioner [2005] NSWCA 91 per Bryson JA at [18]; Thomson v Young [2013] NSWCA 300 at [8]. Circumstances warranting the grant of a stay have been described as “exceptional” ( Jennings Construction Ltd v Burgundy Royale Investments Pty L…
Brady v NULIS Nominees (Australia) Limited in its capacity as trustee of the MLC Super Fund (Stay Application) [2025] FCA 588
Citation 2 (Para 9)

…opportunity for full consideration of the appeal Nikolaides v Legal Services Commissioner [2005] NSWCA 91 per Bryson JA at [18]; Thomson v Young [2013] NSWCA 300 at [8]. Circumstances warranting the grant of a stay have been described as “exceptional” ( Jennings Construction Ltd v Burgundy Royale Investments Pty L…
Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 58
Citation 3 (Para 3)

…ion'. An applicant has to demonstrate a 'high threshold' in making out a special case to warrant such appellate interference. [5] [5] Thomson v Young [2013] NSWCA 300 [13] (approved in Hancock Prospecting [52].…
Lee v The State of Western Australia [2023] WASCA 97
Citation 4 (Para 5)

…tion'. An applicant has to demonstrate a 'high threshold' in making out a special case to warrant such appellate interference.[4] [4] Thomson v Young [2013] NSWCA 300 [13] (approved in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [52]).…
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2023] WASCA 94
Citation 5 (Para 19)

…roceedings at first instance on an interlocutory basis - something that has been described as an 'exceptional jurisdiction'.[68] [68] Thomson v Young [2013] NSWCA 300 [13]. See also: Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 [18], [20]; Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [51] -…
Quach v MLC Limited [2022] FCAFC 202
Citation 6 (Para 19)

…opportunity for full consideration of the appeal: Nikolaides v Legal Services Commissioner [2005] NSWCA 91 per Bryson JA at [18]; Thomson v Young [2013] NSWCA 300 at [8]. Circumstances warranting the grant of a stay have been described as “exceptional” ( Jennings Construction Ltd v Burgundy Royale Investments Pty L…
Woodside Energy Limited v Australian Workers Union [2022] FCA 1391
Citation 7 (Para 20)

…dgson JA in Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369 at [12] and cited with approval by Leeming JA in Thomson v Young [2013] NSWCA 300 at [8]-[9]. In Rockdale Beef at [12] Hodgson JA said that the power of the court to order a stay of proceedings in the Industrial Relations Commissio…
Keevers & Keevers (No 2) [2022] FedCFamC1F 163
Citation 8

…v Commonwealth Bank of Australia (1994) 68 ALJR 53 Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369 Thompson v Young [2013] NSWCA 300 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 10 March 222 Place: Sydney Counsel for the Applicant: Ms Vohra SC Solicitor for…
Secretary, Department of Communities and Justice v KH [2021] NSWCA 308
Citation 9

…[2005] NSWCA 91 Re Henry [2015] NSWCA 89 RH v Secretary, Department of Communities & Justice [2021] NSWCA 101 Thomson v Young [2013] NSWCA 300 Category: Procedural rulings Parties: Secretary, Department of Communities and Justice (Applicant) KH (First Respondent) CS (Second Respondent) DH (Third Respondent) BH (Fou…
RH v Secretary, Department of Communities and Justice [2021] NSWCA 101
Citation 10 (Para 8)

…f an application to stay proceedings in another court pending an appeal against an interlocutory decision in those proceedings: see Thomson v Young [2013] NSWCA 300 (Leeming JA) and the authorities considered therein at [6]-[9]. The decisions to which Leeming JA referred in that decision included the decision of Br…
McLennan v Meyer Vandenberg [2020] ACTCA 7
Citation 11 (Para 1)

…considered, as they incorporate unexpressed value judgments : see Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [69]; Thomson v Young [2013] NSWCA 300 at [12]; Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 at [86]; Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002) (Ipp Re…
Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204
Citation 12 (Para 3)

…found that the applicant had to demonstrate a 'high threshold' in making out a special case to warrant appellant interference.[7] [6] Thomson v Young [2013] NSWCA 300. [7] Thomson v Young [13].…
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141
Citation 13 (Para 6)

…und that the applicant had to demonstrate a 'high threshold' in making out a special case to warrant appellant interference.[24] [23] Thomson v Young [2013] NSWCA 300. [24] Thomson v Young [13].…
National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 2) [2018] NSWSC 969
Citation 14 (Para 6)

…a party seeking to challenge an interlocutory decision of practice and procedure, and obtain a stay in support of that challenge, in Thomson v Young [2013] NSWCA 300 (at [6] ff). In that case an application was made for a stay of proceedings in the District Court pending the determination of the summons for leave…
National Retail Association v Fair Work Commission (No 2) [2014] FCA 664
Citation 15 (Para 11)

…n opportunity for full consideration of the appeal: Nikolaides v Legal Services Commissioner [2005] NSWCA 91 per Bryson JA at [18]; Thomson v Young [2013] NSWCA 300 at [8]. Circumstances warranting the grant of a stay have been described as “exceptional” ( Jennings Construction Ltd v Burgundy Royale Investments Pty…
Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173
Citation 16 (Para 1)

…a party seeking to challenge an interlocutory decision of practice and procedure, and obtain a stay in support of that challenge, in Thomson v Young [2013] NSWCA 300 (at [6] ff). In that case an application was made for a stay of proceedings in the District Court pending the determination of the summons for leave…
Bannister & Hunter Pty Ltd v Transition Resort Holdings Pty Ltd [2014] NSWCA 87
Citation 17 (Para 1)

…I have also been referred to Thomson v Young [2013] NSWCA 300 where Leeming JA referred at [6] to [9] to the applicable principles that apply where a party seeks to challenge an interlocutory decision of practice and procedure. His Honour referred to Nikolaides and to the passage to which I have just referred.…

See all citing cases →

Cases Cited

Paul v Cooke [2012] NSWSC 840
Citation 1 (Para 1)

…apable of answering the description of novus actus interveniens . (I interpolate, that in accordance with the reasoning by Brereton J in Paul v Cooke [2012] NSWSC 840 the question of novus actus interveniens is ultimately a s 5D(1)(b) scope of liability question. In that decision his Honour addresses Mahony v Krusc…
Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369
Citation 2 (Para 1)

…In Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369, Hodgson JA at [12] said:…
Newcrest Mining v Industrial Relations Commission (NSW) [2005] NSWCA 85
Citation 3 (Para 5)

…tay of proceedings in the Industrial Relations Commission should not be exercised lightly and, as stated by Bryson JA in Newcrest Mining v IRC of NSW [2005] NSWCA 85 at [5], it should generally be exercised only if the outcome which is likely if there was no stay be so adverse and severe that justice requires inte…
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Citation 4 (Para 1)

…More recently, and without being exhaustive, reference may be made to Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 in which, although the strength of the applicant's claim was said to be reasonably arguable (see at [15] - [16]), emphasis was given to the fact that different considerations applied when…
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37
Citation 5 (Para 1)

…r Hospital in Newcastle to which she was flown which answers the description provided by the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, as "inexcusably bad", "completely outside the bounds of what any reputable medical practitioner might prescribe", "so obviously unnecessary or impro…
Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310
Citation 6 (Para 1)

…e (see at [15] - [16]), emphasis was given to the fact that different considerations applied when a stay of execution of a judgment was sought (as in Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685) as opposed to proceedings of the nature before me, which involve a stay of pending proceedings. Bryson JA said:…

Legislation Cited

Civil Liability Act 2002 (TAS)
1 mention

Medium Neutral Citation:	Thomson v Young [2013] NSWCA 300
Hearing dates:	5 September 2013
Decision date:	05 September 2013
Before:	Leeming JA
Decision:	Notice of Motion dated 4 September 2013 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:	PRACTICE AND PROCEDURE - application for stay of proceedings in District Court pending determination of summons seeking leave to appeal - applicable test - stay refused
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 Paul v Cooke [2012] NSWSC 840 Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369 Symonds v Egan National Valuers (NSW) Pty Ltd (unreported, 26 February 1996)
Category:	Interlocutory applications
Parties:	Colleen Joy Thomson (Applicant) Ella Anne Young (Respondent)
Representation:	Counsel: EG Romaniuk; E Grotte (Applicant) DR Toomey (Respondent) Solicitors: Moray & Agnew (Applicant) MBT Lawyers (Respondent)
File Number(s):	2013/268555
Decision under appeal	Date of Decision: 2013-09-02 00:00:00 Before: Neilson DCJ File Number(s): 2012/387904