Wende v Howarth (NSW) Pty Ltd

[2010] NSWCA 62

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Wende v Howarth (NSW) Pty Ltd [2010] NSWCA 62

FILE NUMBER(S):
2009/298432

HEARING DATE(S):
29 March 2010

JUDGMENT DATE:
29 March 2010

EX TEMPORE DATE:
29 March 2010

PARTIES:
Herbert Wende (First Appellant)
Margaret Wende (Second Appellant)
Mark Lloyd (Third Appellant)
Horwath (NSW) Pty Ltd (Respondent)

JUDGMENT OF:
Allsop P     

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 13015/07

LOWER COURT JUDICIAL OFFICER:
Hislop J

LOWER COURT DATE OF DECISION:
22 June 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Wende v Horwath (NSW) Pty Ltd [2009] NSWSC 550

COUNSEL:
In person (Appellants)
S F Hughes (Respondent)

SOLICITORS:
In person (Appellants)
Heidtmann & Co  Lawyers (Respondent)

CATCHWORDS:

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
1. Refuse order 1 in the motion filed on 10 March 2010.
2.  Refuse order 4 in the motion filed on 10 March 2010.
3.  Direct the Registrar to approach the NSW Bar Association to ascertain whether a member of the profession will provide assistance in the application of 3 May 2010.
4. Stand over the motion insofar as it seeks an extension of time for filing and serving a notice of appeal to 3 May 2010 before the two judges hearing the application for leave to appeal on that day.
5. Costs of today be costs in the motion filed on 10 March 2010.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298432

ALLSOP P

Monday 29 March 2010

HERBERT WENDE v HOWARTH (NSW) PTY LIMITED

Ex tempore Judgment

1. ALLSOP P:       Before the Court is a notice of motion brought by the parties who are presently applicants for leave to appeal from orders made by a Judge of the Court (Hislop J). They filed a notice of motion seeking various forms of relief. The history of the matter need not be gone into in any detail. It involves an appeal to this Court from a decision of Hislop J heard from and in respect of orders made in the Local Court.

1. The notice of motion seeks the vacation of the hearing date of 3 May. I do not propose to vacate that hearing date. One of the orders sought was an extension of the time for the filing and serving of a notice of appeal. The applicants currently are of the view on their most recent advice that leave to appeal is not required; rather, they have, they consider, an appeal as of right. Thus, they want to file a notice of appeal. The difficulty with their position is that they are significantly out of time and would require an extension of time within which to file a notice of appeal.

2. The respondent maintains the position that leave is required. The procedural difficulty facing the Court now is dealing with the matter in a coherent way which will most efficiently use both Court time, and party and practitioner time. If an application for leave to extend time were to be successful it would be successful upon a view taken by the Court that there were reasonable prospects of success on the appeal. Time would not be extended if the Court were of the view that there were no reasonable prospects of success. That is so even though, if the party had been in time, there would have been an appeal as of right.

3. A virtually identical question will arise in the application for leave to appeal, should leave be required. That is, whether there are reasonable prospects of success. At least two judges must hear a leave application. That leave application has been set down for 3 May.

4. One judge can hear an application for an extension of time but there can be review or appeal from that single judge's decision. In my view, the most sensible use of both Court and party resources is to refer the notice of motion to the extent that it seeks an extension of time for the filing of a notice of appeal to be heard concurrently with the leave application. As I have said, an almost identical question arises in both applications and the two judges can hear both applications in circumstances where I can only hear one.

5. Therefore, in relation to the notice of motion filed on 10 March I will refuse order 1 which was an order sought to vacate the hearing date.

6. In relation to orders 2 and 3, which in effect sought to have permission to file a notice of appeal, I refer that part of the notice of motion to the judges hearing the leave application on 3 May.

7. I refuse order 4 in so far as its seeks the leave application to appeal to be heard before me as a single judge.

8. I direct the registrar to approach the Bar Association to ascertain whether any member of the profession is prepared to assist the applicants in their applications on 3 May. This direction is made without prejudice and not intending to affect in any way the hearing of the matter on 3 May. If I may respectfully put it this way, both Mr Lloyd and Mr Wende who appeared today are apparently intelligent and articulate men who appear well on top of the procedural issues that are before the Court. Whatever occurs on 3 May, the appeal proper if it is to proceed will not be heard on that day.

9. The costs of today be costs in the motion filed on 10 March.

10. The orders of the Court are:

    1.          Refuse order 1 in the motion filed on 10 March 2010.

    2.          Refuse order 4 in the motion filed on 10 March 2010.

    3. Direct the Registrar to approach the NSW Bar Association to ascertain whether a member of the profession will provide assistance in the application of 3 May 2010.

    4.Stand over the motion insofar as it seeks an extension of time for filing and serving a notice of appeal to 3 May 2010 before the two judges hearing the application for leave to appeal on that day.

    5.          Costs of today be costs in the motion filed on 10 March 2010.

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LAST UPDATED:
13 April 2010