Van Gorp v Davy - [2017] NSWCA 167

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Van Gorp v Davy [2017] NSWCA 167
Hearing dates: 6 July 2017
Date of orders: 06 July 2017
Decision date: 06 July 2017
Before: McColl JA at [1] and [29]
White JA at [27]
Decision:
Application for leave to appeal dismissed with costs.

Catchwords: APPEAL – leave to appeal – where primary judge dismissed applicant’s case on grounds of insufficient evidence due to his failure to appear – where non-appearance said to be due to illness – alleged illness not communicated to primary judge – alternative remedy available – Uniform Civil Procedure Rules 2005 (NSW), rr 29.7(2), 29.7(4), 36.16(2)(b)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Local Court Act 2007 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Gibson v Drumm [2016] NSWCA 206
House v The King (1936) 55 CLR 499; [1936] HCA 40
Michail v Mount Druitt & Area Community Legal Centre Inc [2015] NSWCA 396
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Van Gorp v Davy (2014/175601)
Van Gorp v Davy (2015/331605)
Van Gorp v Davy [2016] FCA 1385
Category: Principal judgment
Parties: Sean Cornelius Van Gorp (Applicant)
Kate Louise Davy (Respondent)
Representation:
Counsel:
Self-represented (Applicant)
D O’Sullivan (Respondent)
Solicitors:
Self-represented (Applicant)
Macphillamy’s (Respondent)

File Number(s): 2017/67444
Publication restriction: No
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

Ex tempore

Date of Decision:

02 February 2017

Before:

Fagan J

File Number(s):

2016/81705

Judgment

McCOLL JA: The applicant, Mr Sean Cornelius Van Gorp, seeks leave to appeal from a decision of the Supreme Court in which his Honour Justice Fagan dismissed his summons seeking leave to appeal from two decisions made in Local Court proceedings between the applicant and the respondent, Ms Kate Davy, who is the applicant’s ex-wife. [1] The primary judge dismissed the summons under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 29.7 on the basis that the applicant did not appear and, accordingly, his Honour was not presented with evidence upon which leave to appeal could be granted.
1. Van Gorp v Davy (Supreme Court (NSW), Fagan J, 2 February 2017, unrep).
Leave to appeal to this Court is necessary because the judgment involves a claim of less than $100,000 in value and because it is interlocutory. [2]
2. Supreme Court Act 1970 (NSW), ss 101(2)(e), 101(2)(r)(i).
In the Local Court proceedings, by statement of claim filed on 7 June 2014, the applicant sought to recover an amount of $68,411 he claimed the respondent owed him (First Local Court proceedings). [3] On 31 March 2015, the Court by consent, ordered that there be verdict for the respondent with the applicant to pay her costs (consent orders decision). [4]
3. Van Gorp v Davy (2014/175601).
4. These facts are taken from Van Gorp v Davy [2016] FCA 1385 (Federal Court judgment) (at…

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 Van Gorp v Davy

Details

AGLC: Van Gorp v Davy [2017] NSWCA 167
Case: [2017] NSWCA 167
Decision Date: 06 July 2017

CaseChat Overview and Summary

The applicant, Van Gorp, sought leave to appeal a decision of the primary judge who had dismissed his case due to insufficient evidence, stemming from his failure to appear at the hearing. The applicant claimed his non-appearance was due to illness, but this alleged illness had not been communicated to the primary judge.

The central legal issue before the Court of Appeal was whether the primary judge erred in dismissing the applicant's case without affording him an opportunity to present his evidence, particularly given the alleged illness. The court also considered whether an alternative remedy was available to the applicant under the Uniform Civil Procedure Rules 2005 (NSW).

McColl and White JJA dismissed the application for leave to appeal. Their Honours noted that the applicant had not provided any evidence of his alleged illness to the primary judge, nor had he sought an adjournment. The court found that the applicant had not demonstrated any error on the part of the primary judge, and that the rules concerning the dismissal of proceedings for want of prosecution or insufficient evidence were properly applied. The court also considered the availability of alternative remedies, such as an application to set aside the dismissal, but concluded that leave to appeal was not warranted. The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

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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Medium Neutral Citation:	Van Gorp v Davy [2017] NSWCA 167
Hearing dates:	6 July 2017
Date of orders:	06 July 2017
Decision date:	06 July 2017
Before:	McColl JA at [1] and [29] White JA at [27]
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	APPEAL – leave to appeal – where primary judge dismissed applicant’s case on grounds of insufficient evidence due to his failure to appear – where non-appearance said to be due to illness – alleged illness not communicated to primary judge – alternative remedy available – Uniform Civil Procedure Rules 2005 (NSW), rr 29.7(2), 29.7(4), 36.16(2)(b)
Legislation Cited:	Civil Procedure Act 2005 (NSW) Local Court Act 2007 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Gibson v Drumm [2016] NSWCA 206 House v The King (1936) 55 CLR 499; [1936] HCA 40 Michail v Mount Druitt & Area Community Legal Centre Inc [2015] NSWCA 396 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Van Gorp v Davy (2014/175601) Van Gorp v Davy (2015/331605) Van Gorp v Davy [2016] FCA 1385
Category:	Principal judgment
Parties:	Sean Cornelius Van Gorp (Applicant) Kate Louise Davy (Respondent)
Representation:	Counsel: Self-represented (Applicant) D O’Sullivan (Respondent) Solicitors: Self-represented (Applicant) Macphillamy’s (Respondent)
File Number(s):	2017/67444
Publication restriction:	No
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: Ex tempore Date of Decision: 02 February 2017 Before: Fagan J File Number(s): 2016/81705