Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Woolf v Brandt [2023] NSWCA 290 Hearing dates: 30 November 2023 Date of orders: 30 November 2023 Decision date: 05 December 2023 Before: Kirk JA; Adamson JA Decision: 1. Leave to appeal refused.
2. Order the applicant to pay the respondent’s costs.
3. The respondent to file and serve submissions and evidence in relation to his application that his costs of the proceedings be fixed in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) by 4 December 2023.
4. The applicant to file and serve any submissions and evidence in response by 12 December 2023.
5. The respondent to file and serve any submissions and evidence in reply by 14 December 2023.
Catchwords: LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — abuse of process — defamation proceedings — applicant’s predominant purpose an ulterior purpose to maintain contact with respondent — whether finding of ulterior purpose erroneous — whether ulterior purpose sufficient to make proceedings abuse of process where also pursuing legitimate remedy — ulterior purpose need not be sole purpose
LEAVE TO APPEAL — PRACTICE AND PROCEDURE — alleged denial of procedural fairness — where applicant read extensive affidavit near the end of hearing — where applicant sent submissions to primary judge without leave after judgment reserved
LEAVE TO APPEAL — PRACTICE AND PROCEDURE — summary dismissal — Anshun estoppel — whether subsequent interlocutory application for dismissal can be brought in same proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58, 60
Defamation Act 2005 (NSW), ss 12A, 27
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Browne v Dunn (1894) 6 R 67
Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; [1915] HCA 56
Packer v Meagher [1984] 3 NSWLR 486
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Varawa v Howard Smith Company Ltd (1911) 13 CLR 35; [1911] HCA 46
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Category: Principal judgment Parties: Richard Woolf (Applicant)
Nicholas Brandt (Respondent)Representation: Counsel:
Solicitors:
Self-represented (Applicant)
T Smartt (Respondent)
Not applicable (Applicant)
Youth Law Australia (Respondent)
File Number(s): 2023/214839 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Civil
- Citation:
- Date of Decision:
- 7 June 2023
- Before:
- Gibson DCJ
- File Number(s):
- 2022/135926
HEADNOTE
[This headnote is not to be read as part of the judgment]
Richard Woolf (the applicant) sought leave to appeal against an…
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- AGLC
- Woolf v Brandt [2023] NSWCA 290
- Case
- [2023] NSWCA 290
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine several legal issues. Firstly, it had to consider whether the primary judge's finding that the applicant possessed an ulterior purpose was erroneous. Secondly, the Court had to assess whether an ulterior purpose, even if not the sole purpose, was sufficient to render the proceedings an abuse of process, particularly when the applicant was also pursuing a legitimate remedy. Thirdly, the Court examined allegations of a denial of procedural fairness, arising from the applicant's late filing of an extensive affidavit and the submission of further arguments to the primary judge after judgment had been reserved. Finally, the Court considered whether an interlocutory application for dismissal based on *Anshun* estoppel could be brought within the same proceedings.
In its reasoning, the Court of Appeal affirmed that an ulterior purpose, even if not the sole purpose, could be sufficient to establish an abuse of process if it was the predominant purpose and was being pursued in a manner that was vexatious or oppressive. The Court found no error in the primary judge's assessment of the applicant's predominant purpose. Regarding procedural fairness, the Court concluded that the applicant had not been denied a fair hearing, as the late affidavit and submissions were considered by the primary judge, and the applicant had not demonstrated any prejudice. The Court also held that the *Anshun* estoppel argument was not a bar to the interlocutory application for dismissal.
Consequently, the Court of Appeal refused leave to appeal and ordered the applicant to pay the respondent's costs. Directions were also given for the filing of submissions and evidence regarding the respondent's application to fix costs in a gross sum.
Orders
Orders of the court
1. Leave to appeal refused.
2. Order the applicant to pay the respondent’s costs.
3. The respondent to file and serve submissions and evidence in relation to his application that his costs of the proceedings be fixed in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) by 4 December 2023.
4. The applicant to file and serve any submissions and evidence in response by 12 December 2023.
5. The respondent to file and serve any submissions and evidence in reply by 14 December 2023.
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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