Klewer v Walton [2003] NSWCA 138

Klewer v Walton [2003] NSWCA 138

The test for granting extension of time is whether the proposed appeal is 'futile and doomed to failure'. On the material before the Court, the claim that Sergeant Levey may have made a prior inconsistent statement concerning the alleged assault was at least arguable. There is no indication that the magistrate, or Master Harrison on review, took into account all matters mandated by s192 of the Evidence Act. Thus, the appeal is not clearly futile, and the extension of time should be granted, setting aside the registrar’s order.

Parties
Claimant: Lucy Klewer; Opponent: Ian Walton
Jurisdiction
Australia
Judgment Date
26 May 2003
Procedural Posture
Application for Extension of Time and Review of Registrar's Order / Appellate Review of Registrar's Order on Extension of Time; Application for Leave to Appeal
Outcome
Orders of Registrar Schell set aside; extension of time granted; no order as to costs
Legal Topics
Extension of Time, Leave to Appeal, Hostile Witnesses, Prior Inconsistent Statements
Civil Procedure Extension of Time Leave to Appeal Hostile Witnesses Prior Inconsistent Statements

Case Brief

Summary, issues, holding and outcome

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Parties

Lucy Klewer

Claimant

Ian Walton

Opponent

Procedural Posture

Application for Extension of Time and Review of Registrar's Order / Appellate Review of Registrar's Order on Extension of Time; Application for Leave to Appeal

Legal Issues

  1. 1 Whether the order of Registrar Schell dismissing the notice of motion for extension of time should be set aside
  2. 2 Whether extension of time to file a holding summons for leave to appeal from the decision of Master Harrison should be granted
  3. 3 Whether appeal from the refusal to permit cross-examination of a witness as hostile would be futile and doomed to failure

Ratio Decidendi

The test for granting extension of time is whether the proposed appeal is 'futile and doomed to failure'. On the material before the Court, the claim that Sergeant Levey may have made a prior inconsistent statement concerning the alleged assault was at least arguable. There is no indication that the magistrate, or Master Harrison on review, took into account all matters mandated by s192 of the Evidence Act. Thus, the appeal is not clearly futile, and the extension of time should be granted, setting aside the registrar’s order.

Court Disposition

Orders of Registrar Schell set aside; extension of time granted; no order as to costs

Orders

  • The orders of Registrar Schell dated 3 February 2003 be set aside.
  • The date for filing a holding summons for leave to appeal from the decision of Master Harrison of 6 September 2002 be extended to 4 December 2002.