Wilkie v Brown (No 2) - [2018] NSWCA 80

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wilkie v Brown (No 2) [2018] NSWCA 80
Hearing dates: 10 April 2018
Decision date: 18 April 2018
Before: McColl JA at [1];
Meagher JA at [1];
Ward JA at [1]
Decision:
1. Refuse the application to extend time under UCPR, r 59.10(2).
2. Dismiss the summons filed on 16 November 2017 with costs.

Catchwords:
JUDGMENTS AND ORDERS – res judicata – interlocutory orders – Civil Procedure Act 2005 (NSW), s 91 – where order dismissing appeal proceeding because of appellant’s non-appearance not subject to any terms preventing further proceedings and not including any determination on the merits – whether jurisdictional error or error of law on face of record in dismissing later appeal proceeding because existing order dismissing proceeding deprived court of jurisdiction
PRACTICE AND PROCEDURE – leave to commence judicial review proceeding outside three-month period under Uniform Civil Procedure Rules (NSW), r 59.10 – where applicant’s ultimate interest in quashing orders dismissing appeal is in successfully prosecuting appeal from cost review panel’s assessment of solicitor’s costs – where no explanation of delay in District Court and Supreme Court, insufficient evidence to assess merits of underlying appeal, and disproportion between costs incurred and nominal amount of earlier legal costs in issue – whether applicant’s interest in successfully prosecuting underlying appeal warrants incurring of further costs as between parties or in public interest – no question of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3(1), 4(1), 91(1)
District Court Act 1973 (NSW), s 127(1)
Legal Profession Act 2004 (NSW), ss 382(1), 384, 385
Supreme Court Act 1970 (NSW), ss 48(1)(a)(iv), 48(2)(g), 69
Uniform Civil Procedure Rules 2005 (NSW), rr 12.10(b), 50.3, 59.10
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Trust v Das [2012] NSWCA 164
Birkett v James [1978] AC 297
Huang v Attapallil [2017] NSWCA 181
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
State of New South Wales v Avery (2016) 92 NSWLR 141; [2016] NSWCA 147
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Texts Cited: KR Handley, Spencer-Bower and Handley: Res Judicata, (4th ed 2009, LexisNexis)
Category: Principal judgment
Parties: Sophia Wilkie (Applicant)
Michael Neil Brown (First Respondent)
District Court of New South Wales (Second Respondent)
Representation:
Counsel:
W Carney (Applicant)
In person (First Respondent)
Solicitors:
Slattery Thompson Solicitors (Applicant)
In person (First Respondent)

File Number(s): 2017/346986
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

3 February 2017

Before:

Maiden DCJ

File Number(s):

2015/74248

Judgment

THE COURT: By a summons filed on 16 November 2017, the applicant (Ms Wilkie) seeks judicial review of a decision of a judge of the District Court exercising that Court’s appellate jurisdiction under the LegalProfession Act 2004 (NSW) (now repealed). By that decision, the primary judge (Maiden DCJ) on 3 February 2017 dismissed Ms Wilkie’s summons appealing and seeking leave to appeal from two…

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 Wilkie v Brown (No 2)

Details

AGLC: Wilkie v Brown (No 2) [2018] NSWCA 80
Case: [2018] NSWCA 80
Decision Date: 18 April 2018

CaseChat Overview and Summary

The proceeding before the Court of Appeal of New South Wales involved an application by the appellant, Mr Wilkie, for leave to commence a judicial review proceeding outside the usual three-month time limit prescribed by rule 59.10 of the Uniform Civil Procedure Rules (NSW). The dispute arose from earlier orders dismissing an appeal proceeding due to Mr Wilkie's non-appearance, and a subsequent appeal from a cost review panel's assessment of a solicitor's costs.

The primary legal issues before the Court of Appeal were whether an order dismissing an appeal proceeding for non-appearance, which did not involve a determination on the merits, prevented a later appeal proceeding from being heard due to the existence of that prior order. Additionally, the Court had to consider whether to grant an extension of time for Mr Wilkie to commence judicial review proceedings, assessing whether his ultimate interest in quashing the dismissal orders warranted the significant costs involved, particularly given the lack of explanation for delays and insufficient evidence regarding the merits of the underlying appeal.

The Court reasoned that the earlier order dismissing the appeal proceeding for non-appearance did not operate as res judicata, as it was not a determination on the merits and did not contain terms preventing further proceedings. However, the Court refused to grant an extension of time under rule 59.10(2). This refusal was based on the lack of explanation for the delays in both the District Court and Supreme Court, the insufficient evidence to assess the merits of the underlying appeal, and the disproportionate costs incurred compared to the nominal amount of the earlier legal costs in issue. The Court found no question of principle that would justify the expenditure of further costs in the public interest or as between the parties.

Consequently, the Court of Appeal refused the application to extend time under UCPR, rule 59.10(2) and dismissed the summons filed on 16 November 2017, with costs.

Orders

Orders of the court

1. Refuse the application to extend time under UCPR, r 59.10(2).

2. Dismiss the summons filed on 16 November 2017 with costs.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Wilkie v Brown (No 2) [2018] NSWCA 80
Hearing dates:	10 April 2018
Decision date:	18 April 2018
Before:	McColl JA at [1]; Meagher JA at [1]; Ward JA at [1]
Decision:	1. Refuse the application to extend time under UCPR, r 59.10(2). 2. Dismiss the summons filed on 16 November 2017 with costs.
Catchwords:	JUDGMENTS AND ORDERS – res judicata – interlocutory orders – Civil Procedure Act 2005 (NSW), s 91 – where order dismissing appeal proceeding because of appellant’s non-appearance not subject to any terms preventing further proceedings and not including any determination on the merits – whether jurisdictional error or error of law on face of record in dismissing later appeal proceeding because existing order dismissing proceeding deprived court of jurisdiction PRACTICE AND PROCEDURE – leave to commence judicial review proceeding outside three-month period under Uniform Civil Procedure Rules (NSW), r 59.10 – where applicant’s ultimate interest in quashing orders dismissing appeal is in successfully prosecuting appeal from cost review panel’s assessment of solicitor’s costs – where no explanation of delay in District Court and Supreme Court, insufficient evidence to assess merits of underlying appeal, and disproportion between costs incurred and nominal amount of earlier legal costs in issue – whether applicant’s interest in successfully prosecuting underlying appeal warrants incurring of further costs as between parties or in public interest – no question of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 3(1), 4(1), 91(1) District Court Act 1973 (NSW), s 127(1) Legal Profession Act 2004 (NSW), ss 382(1), 384, 385 Supreme Court Act 1970 (NSW), ss 48(1)(a)(iv), 48(2)(g), 69 Uniform Civil Procedure Rules 2005 (NSW), rr 12.10(b), 50.3, 59.10
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Trust v Das [2012] NSWCA 164 Birkett v James [1978] AC 297 Huang v Attapallil [2017] NSWCA 181 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 State of New South Wales v Avery (2016) 92 NSWLR 141; [2016] NSWCA 147 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Texts Cited:	KR Handley, Spencer-Bower and Handley: Res Judicata, (4th ed 2009, LexisNexis)
Category:	Principal judgment
Parties:	Sophia Wilkie (Applicant) Michael Neil Brown (First Respondent) District Court of New South Wales (Second Respondent)
Representation:	Counsel: W Carney (Applicant) In person (First Respondent) Solicitors: Slattery Thompson Solicitors (Applicant) In person (First Respondent)
File Number(s):	2017/346986
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 3 February 2017 Before: Maiden DCJ File Number(s): 2015/74248