Dunn v McCarthy [2008] NSWCA 309 (14 November 2008)

Last Updated: 20 November 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Dunn v McCarthy [2008] NSWCA 309


FILE NUMBER(S):
40096/08

HEARING DATE(S):
14 November 2008

JUDGMENT DATE:
14 November 2008

EX TEMPORE DATE:
14 November 2008

PARTIES:
Craig Dunn (Appellant)
John Anthony McCarthy QC (Respondent)

JUDGMENT OF:
Allsop P Campbell JA Bell JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
30074/07

LOWER COURT JUDICIAL OFFICER:
Harrison AsJ

LOWER COURT DATE OF DECISION:
23 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Dunn v McCarthy QC [2007] NSWSC 1336

COUNSEL:
Unrepresented (Appellant)
JM Ireland QC; B Skinner (Respondent)

SOLICITORS:
McDermott and Associates as City Agent for Noble Lawyers (Appellant)
Haylen McKenzie (Respondent)

CATCHWORDS:
APPEALS – revocation of leave to appeal – appeal against a decision that court had no jurisdiction – where that decision is clearly right – where no live contender for the appeal – costs

LEGISLATION CITED:


CATEGORY:
Principal judgment

CASES CITED:
Dunn v McCarthy QC [2007] NSWSC 1336

TEXTS CITED:


DECISION:
(1) Leave to appeal revoked.
(2) Applicant for leave to appeal to pay costs of proceedings in this Court.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40096/08

SC 30074/07

ALLSOP P

CAMPBELL JA

BELL JA

FRIDAY 14 NOVEMBER 2008

CRAIG DUNN v JOHN McCARTHY

Judgment

1 ALLSOP P: I will ask Campbell JA to give the first judgment.

2 CAMPBELL JA: There is listed before the court today an appeal from a decision of Harrison AsJ in Dunn v McCarthy QC [2007] NSWSC 1336. It was necessary for leave to appeal to this Court to be given before there could be an appeal from that decision. That leave was granted earlier this year by Justice Hodgson and Justice Bell.

3 The decision that Harrison AsJ gave concerned an appeal, brought out of time, against a certificate of assessment of costs by a costs assessor. It was necessary, before the appeal to Harrison AsJ could proceed, for there to be an extension of time.

4 At the forefront of her reasons, her Honour noted that there was a power of extension of the time for appealing, noted that it was for the parties seeking the extension to persuade the court that it was in the interests of justice that an extension should be granted, noted that a relevant factor to that question was whether there was an acceptable explanation as to why the time limits were not complied with, and noted that no explanation had been given for the delay. At the hearing before her Honour, there had been no application made, on behalf of the appellant before her Honour, for an adjournment to enable any evidence of such an explanation to be given. Hence, her Honour declined to extend the time.

5 Her Honour indicated in her judgment that had she thought that there was substance in the appeal, she may well have granted an adjournment to enable any such evidence to be put on. However, when there was no application for an adjournment, that remark was not a remark made in relation to any issue that was before her.

6 In the course of her judgment, the Associate Justice made various remarks about a matter of substance that the appellant alleged had not been adequately dealt with by the costs assessor. Her Honour indicated in obiter dicta that she was not persuaded the costs assessor was in error concerning that matter of substance. Had her Honour granted an extension of time, that matter would have been relevant to her ultimate determination of the appeal. The basis upon which the leave to appeal was granted in this court depended upon the preliminary view taken concerning whether there was an arguable case concerning that matter of substance.

7 On closer examination of the procedural history, however, it appears that there is no evidence that would not have been available at the time of the hearing before her Honour as to why the appeal to Harrison AsJ was brought out of time. Essentially, therefore, the appeal to this Court is an appeal against a decision that the Court had no jurisdiction, in circumstances where no extension of time had been granted. The decision that the Court had no jurisdiction is clearly right.

8 The appellant made an application yesterday for adjournment of today’s hearing. That application was refused. This morning a legal practitioner appeared who had no instructions that enabled her to argue the case in any way that would have been helpful to the court. She withdrew from the court, having been informed that the court would not regard it as disrespectful for her to do so if she wished. Thus, the Court is presented with a situation where there is no live contender for the appeal.

9 In circumstances where it is clear that her Honour was right in deciding the Court had no power to deal with the merits of the matter before her, and where there is no live contender today to argue the appeal, the appropriate course is for the leave to appeal to be revoked.

10 I propose that the leave to appeal be revoked, and that the applicant for leave to appeal be ordered to pay the costs of the proceedings in this Court.

11 ALLSOP P: I agree with the proposed orders by Justice Campbell. I also agree with his reasons. I would only add the following.

12 This matter has been in the Court for some months this year. It has had a number of appearances before judges and registrars. The matter has been set down for hearing for some months. The inability or unwillingness of the appellant to properly organise his affairs to have the matter propounded today in the light of what was an extraordinary application for vacation of the hearing date yesterday are further reasons why the leave granted by Justice Hodgson and Justice Bell should be revoked.

13 BELL JA: I agree with the orders proposed by Justice Campbell and his Honour’s reasons. I agree with the additional remarks made by the presiding judge.

14 ALLSOP P: The orders of the Court are as proposed by Justice Campbell.

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LAST UPDATED:
19 November 2008