Higgins v Brennan [2004] NSWCA 23

Higgins v Brennan [2004] NSWCA 23

Leave to appeal was warranted because the evidence indicated that the judge did not afford counsel for the claimant an opportunity to be heard, the Court could not say that this made no difference, and the surrounding remarks gave rise to a strong arguable case that the claimant would justifiably think her application had not been dealt with on its merits but was affected by displeasure at the taking of technical points.

Jurisdiction
Australia
Judgment Date
13 February 2004
Procedural Posture
Application for Leave to Appeal / Urgent Application for Leave to Appeal From an Order Dismissing an Application for Interlocutory Relief in the Equity Division
Outcome
Leave to appeal granted; by consent the order dismissing the claimant's application for interlocutory relief was set aside and the proceedings were remitted to the Equity Division.
Legal Topics
['leave to Appeal' 'interlocutory Relief' 'procedural Fairness' 'natural Justice' 'opportunity to Be Heard']
['civil Procedure' 'equity' 'appellate Procedure'] ['leave to Appeal' 'interlocutory Relief' 'procedural Fairness' 'natural Justice' 'opportunity to Be Heard']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal / Urgent Application for Leave to Appeal From an Order Dismissing an Application for Interlocutory Relief in the Equity Division

Legal Issues

  1. 1 ['Whether the claimant was denied procedural fairness because counsel was not afforded an opportunity to be heard before the interlocutory application was dismissed.' 'Whether there was a strong arguable case that the dismissal of interlocutory relief was affected by displeasure at the claimant taking technical points rather than by a determination on the merits.']

Ratio Decidendi

Leave to appeal was warranted because the evidence indicated that the judge did not afford counsel for the claimant an opportunity to be heard, the Court could not say that this made no difference, and the surrounding remarks gave rise to a strong arguable case that the claimant would justifiably think her application had not been dealt with on its merits but was affected by displeasure at the taking of technical points.

Court Disposition

Leave to appeal granted; by consent the order dismissing the claimant's application for interlocutory relief was set aside and the proceedings were remitted to the Equity Division.

Orders

  • ['Leave to appeal granted.' "By consent, the order made this morning in the Equity Division dismissing the claimant's application for interlocutory relief is set aside." 'Costs of the application for leave to appeal are to be paid in accordance with the order made by the judge of the Equity Division before whom that...