Young v Cooke

[2013] NSWCA 79

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Young v Cooke [2013] NSWCA 79

Hearing dates:

28 March 2013

Decision date:

28 March 2013

Before:

Meagher JA at [1]
Emmett JA at [4]

Decision:

1. Leave to appeal refused.

2. The applicant is to pay the respondents' costs of the motions

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - summons for leave to appeal - striking out cause of action for false imprisonment - refusal of leave to replead - whether pleadable cause of action - applicant unable to walk to town from property due to previous injury - failure to mention previous injury to court

APPEAL - summons for leave to appeal - costs - order that costs be paid forthwith - presumption that interlocutory costs be paid at end of proceeding - discretion where costs relate to a discrete matter

Cases Cited:

McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289

Category:

Interlocutory applications

Parties:

Gary Young (Applicant)
Bill Cooke (First Respondent)
Helena Cooke (Second Respondent)
Jean Sprague (Third Respondent)
Anthony Croker (Fourth Respondent)
RSPCA NSW (Fifth Respondent)
State of NSW (Sixth Respondent)

Representation:

Counsel:
In person (Applicant)
D Stewart (First & Second Respondents)
P M Morris SC (Third, Fourth & Fifth Respondents)
G J Bateman (Sixth Respondent)
Solicitors:
In person (Applicant)
Chapman Thackeray Law Pty Ltd (First & Second Respondents)
Moray & Agnew (Third, Fourth & Fifth Respondents)
Crown Solicitor's Office (Sixth Respondent)

File Number(s):

2012/88630

 Decision under appeal 

Date of Decision:

2011-11-24 00:00:00

Before:

Johnstone DCJ

File Number(s):

2011/254369

Judgment

1. MEAGHER JA: Subject to one minor qualification I agree with the orders proposed by Justice Emmett and the reasons he gives for the making of those orders. That qualification is that in his reasons his Honour referred to an access gate which may have provided pedestrian access into and from Mr Young's property. In his written submissions in reply Mr Young maintains that this gate provided access only to an adjacent property and was not an entrance to or exit from his property. However, whether this gate provided such access was not relevant to the primary judge's conclusion, which turned on whether there was another reasonable means of egress from the property and that means was, as Mr Young conceded in his submissions to the Court, through or under the fence to his property. Accordingly, the real issue before the primary judge was the one which has been referred to and dealt with in Justice Emmett's reasons.

1. The respondents apply for their costs of the application. Mr Young submits that the fact that he is representing himself and…