Tory v Megna - [2012] NSWCA 41

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tory v Megna [2012] NSWCA 41
Hearing dates: 12 March 2012
Decision date: 12 March 2012
Before: Young JA
Decision:
(1) Order that the submitting appearance filed by Mr Tory on 8 July 2011 may be withdrawn and a contested appearance filed in lieu.
(2) Order (1) subject to conditions 1 to 5 in Mr Molomby's document, varying condition 3 to make it 21 days and the amount $62,000.
(3) Grant liberty to apply to the Registrar of the Court of Appeal as to what should happen if that security is not provided within the 21 days.
(4) Order that the parties may have liberty to approach the Registrar with respect to fixing a date for the hearing of the appeal.
[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: PROCEDURE- applicant filed motion seeking leave to withdraw a submitting appearance- applicant originally filed submitting appearance when appellant, who was in the same interest, was represented- applicant filed motion to withdraw submitting appearance when appellant's solicitors ceased to act- granting leave to withdraw a submitting appearance is a discretionary decision of the court- generally, leave should be granted where an appearance was entered by mistake or accident but not when a deliberate choice was made- other considerations include whether the applicant has an arguable case, whether there is real prejudice and whether there has been any material change of case- although no exact precedent, in accordance with principle, it is appropriate to grant leave- leave granted.
Legislation Cited: Civil Procedure Act 2005, s 56
Uniform Civil Procedure Rules 2005, r 6.11
Cases Cited: Evergreen Tours Pty Ltd v Mclaren [2010] NSWSC 1362
Garsec v His Majesty, The Sultan of Brunei [2007] NSWSC 882
Somportex Ltd v Philadelphia Chewing Gum Corporation [1986] 3 All ER 26
Category: Interlocutory applications
Parties: David John Marshall (Appellant)
Richard Martin Tory (Applicant/Third Respondent)
Michael Megna (First Respondent)
Russell James Lloyd (Second Respondent)
Representation: Counsel:
Appellant in person
D Bricknell (Applicant/Third Respondent)
T Molomby QC and R Rasmussen (First and Second Respondents)
Solicitors:
Appellant self represented
Bricknell Legal (Applicant/Third Respondent)
Etheringtons Solicitors (First and Second Respondents)

File Number(s): CA 2004/181254

Judgment

HIS HONOUR: This is a notice of motion seeking leave to withdraw a submitting appearance. The appeal involves a Supreme Court judgment against Messrs Marshall and Tory over a defamation of Mr Megna with respect to local government politics in the Drummoyne area. The applicant, Mr Richard Tory, is the third respondent in the appeal and the second cross-respondent in the cross-appeal, and I'll call him the applicant. The appellant, Mr David Marshall, who…

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 Tory v Megna

Details

AGLC: Tory v Megna [2012] NSWCA 41
Case: [2012] NSWCA 41
Decision Date: 12 March 2012

CaseChat Overview and Summary

In *Tory v Megna*, the applicant, Mr Tory, sought leave from the Court of Appeal to withdraw a submitting appearance he had previously filed. Mr Tory had initially filed this appearance when the appellant, who shared the same interests, was represented by solicitors. However, his solicitors subsequently ceased to act for him, prompting the application to withdraw the submitting appearance and file a contested appearance instead.

The central legal issue before the Court of Appeal was whether to grant Mr Tory leave to withdraw his submitting appearance. The court considered that granting such leave is a discretionary decision. Generally, leave is granted if an appearance was entered by mistake or accident, but not if it was a deliberate choice. Other relevant considerations included whether the applicant possessed an arguable case, whether there would be real prejudice to the other party, and whether there had been any material change in the case.

Applying these principles, the Court of Appeal determined that it was appropriate to grant leave. Although no exact precedent was precisely on point, the court found that, in accordance with established legal principles, the circumstances warranted allowing the withdrawal of the submitting appearance.

The Court of Appeal ordered that Mr Tory's submitting appearance filed on 8 July 2011 could be withdrawn, and a contested appearance filed in its place. This order was made subject to certain conditions, including the provision of security in the amount of $62,000 within 21 days. Liberty to apply was granted to the Registrar regarding the consequences of failing to provide the security and for fixing a date for the hearing of the appeal.

Orders

Orders of the court

(1) Order that the submitting appearance filed by Mr Tory on 8 July 2011 may be withdrawn and a contested appearance filed in lieu.

(2) Order (1) subject to conditions 1 to 5 in Mr Molomby's document, varying condition 3 to make it 21 days and the amount $62,000.

(3) Grant liberty to apply to the Registrar of the Court of Appeal as to what should happen if that security is not provided within the 21 days.

(4) Order that the parties may have liberty to approach the Registrar with respect to fixing a date for the hearing of the appeal.

[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:	Tory v Megna [2012] NSWCA 41
Hearing dates:	12 March 2012
Decision date:	12 March 2012
Before:	Young JA
Decision:	(1) Order that the submitting appearance filed by Mr Tory on 8 July 2011 may be withdrawn and a contested appearance filed in lieu. (2) Order (1) subject to conditions 1 to 5 in Mr Molomby's document, varying condition 3 to make it 21 days and the amount $62,000. (3) Grant liberty to apply to the Registrar of the Court of Appeal as to what should happen if that security is not provided within the 21 days. (4) Order that the parties may have liberty to approach the Registrar with respect to fixing a date for the hearing of the appeal. [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:	PROCEDURE- applicant filed motion seeking leave to withdraw a submitting appearance- applicant originally filed submitting appearance when appellant, who was in the same interest, was represented- applicant filed motion to withdraw submitting appearance when appellant's solicitors ceased to act- granting leave to withdraw a submitting appearance is a discretionary decision of the court- generally, leave should be granted where an appearance was entered by mistake or accident but not when a deliberate choice was made- other considerations include whether the applicant has an arguable case, whether there is real prejudice and whether there has been any material change of case- although no exact precedent, in accordance with principle, it is appropriate to grant leave- leave granted.
Legislation Cited:	Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 6.11
Cases Cited:	Evergreen Tours Pty Ltd v Mclaren [2010] NSWSC 1362 Garsec v His Majesty, The Sultan of Brunei [2007] NSWSC 882 Somportex Ltd v Philadelphia Chewing Gum Corporation [1986] 3 All ER 26
Category:	Interlocutory applications
Parties:	David John Marshall (Appellant) Richard Martin Tory (Applicant/Third Respondent) Michael Megna (First Respondent) Russell James Lloyd (Second Respondent)
Representation:	Counsel: Appellant in person D Bricknell (Applicant/Third Respondent) T Molomby QC and R Rasmussen (First and Second Respondents) Solicitors: Appellant self represented Bricknell Legal (Applicant/Third Respondent) Etheringtons Solicitors (First and Second Respondents)
File Number(s):	CA 2004/181254