Wilkie v Brown (No 2)

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.