Young v Sprague - [2014] NSWCA 457

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Young v Sprague [2014] NSWCA 457
Hearing dates: 18 December 2014
Decision date: 19 December 2014
Before: Sackville AJA
Decision:
1. The notice of appeal filed 25 June 2014 be struck out.
2. The appellant pay the respondents' costs of the motions objecting to competency.
[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 - whether appeal lies as of right - failure to demonstrate reasonable prospect of increasing wealth by $100,000 if the appeal succeeded
Legislation Cited:
District Court Act 1973 (NSW) s 127
Supreme Court Act 1970 (NSW) ss 46, 46B
Uniform Civil Procedure Rules 2005 (NSW) rr 51.18, 51.22, 51.41
Cases Cited: Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Schepis v Commonwealth of Australia [2012] NSWCA 398
Young v Sprague [2014] NSWCA 456
Category: Interlocutory applications
Parties: Gary Young (Appellant)
Jean Sprague (First Respondent)
Anthony Croker (Second Respondent
The Royal Society for the Prevention of Cruelty to Animals (Third Respondent)
State of New South Wales (Fourth Respondent)
Representation: Counsel:
In person (Appellant)
P Morris SC (First, Second and Third Respondent)
G Bateman (Fourth Respondent)
Solicitors:
Moray & Agnew (First, Second and Third Respondents)
Crown Solicitor (Fourth Respondent)

File Number(s): 2014/105260
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2014-03-10 00:00:00

Before:

Norton DCJ

File Number(s):

11/254369

Judgment

SACKVILLE AJA: The background to the objections to competency filed by the respondents is explained in the judgment in the appellant's (as I shall describe him) application for leave to appeal delivered at the same time as this judgment: Young v Sprague [2014] NSWCA 456 (Principal Judgment). The Principal Judgment was prepared on the assumption that the objections to competency would succeed and thus the appellant required leave to appeal. On that assumption, the Court dismissed the summons for leave to appeal.

The respondents' objection to competency was heard by a single judge, as required by the Supreme Court Act 1970 (NSW): see ss 46(2)(b), 46B(1)(b); Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15] (per curiam).

As the Principal Judgment explains, the appellant filed a notice of appeal on 25 June 2014. The notice of appeal was not served until 15 July 2014. It should have been filed and served by 10 June 2014. I leave to one side the lateness of filing and service.

The fourth respondent (the State) filed a motion on 11 August 2014 seeking an order that the proceedings be dismissed as incompetent pursuant to

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 Young v Sprague

Details

AGLC: Young v Sprague [2014] NSWCA 457
Case: [2014] NSWCA 457
Decision Date: 19 December 2014

CaseChat Overview and Summary

In *Young v Sprague*, the appellant sought to appeal a decision of the primary judge. The respondents objected to the competency of the appeal.

The central legal issue before the Court of Appeal was whether the appeal lay as of right. This required the Court to determine if the appellant had demonstrated a reasonable prospect of increasing their wealth by $100,000 if the appeal succeeded, as stipulated by the relevant appeal provisions.

The Court of Appeal found that the appellant had failed to demonstrate the requisite prospect of increasing their wealth by $100,000. Consequently, the appeal did not lie as of right. The Court therefore struck out the notice of appeal and ordered the appellant to pay the respondents' costs of the competency motions.

Orders

Orders of the court

1. The notice of appeal filed 25 June 2014 be struck out.

2. The appellant pay the respondents' costs of the motions objecting to competency.

[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.]

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Young v Sprague [2014] NSWCA 457
Hearing dates:	18 December 2014
Decision date:	19 December 2014
Before:	Sackville AJA
Decision:	1. The notice of appeal filed 25 June 2014 be struck out. 2. The appellant pay the respondents' costs of the motions objecting to competency. [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 - whether appeal lies as of right - failure to demonstrate reasonable prospect of increasing wealth by $100,000 if the appeal succeeded
Legislation Cited:	District Court Act 1973 (NSW) s 127 Supreme Court Act 1970 (NSW) ss 46, 46B Uniform Civil Procedure Rules 2005 (NSW) rr 51.18, 51.22, 51.41
Cases Cited:	Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Schepis v Commonwealth of Australia [2012] NSWCA 398 Young v Sprague [2014] NSWCA 456
Category:	Interlocutory applications
Parties:	Gary Young (Appellant) Jean Sprague (First Respondent) Anthony Croker (Second Respondent The Royal Society for the Prevention of Cruelty to Animals (Third Respondent) State of New South Wales (Fourth Respondent)
Representation:	Counsel: In person (Appellant) P Morris SC (First, Second and Third Respondent) G Bateman (Fourth Respondent) Solicitors: Moray & Agnew (First, Second and Third Respondents) Crown Solicitor (Fourth Respondent)
File Number(s):	2014/105260
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2014-03-10 00:00:00 Before: Norton DCJ File Number(s): 11/254369