Ahern v Aon Risk Services Australia Limited [2023] NSWCA 91

Ahern v Aon Risk Services Australia Limited [2023] NSWCA 91

Leave to appeal was refused because it was not reasonably arguable that the primary judge denied procedural fairness: the extension of time issue was raised in written submissions, identified as an issue, addressed in oral argument, and the primary judge made clear that he intended to determine it. Given the lengthy delay, substantial prejudice and extremely weak proposed appeal, the primary judge did not err in refusing an extension of time, and the consequent dismissal of the out-of-time summons was not shown to be erroneous. The purported appeal as of right was incompetent because the summary dismissal order was interlocutory and required leave.

Jurisdiction
Australia
Judgment Date
11 May 2023
Procedural Posture
Application for Leave to Appeal and Purported Appeal as of Right From a Supreme Court Common Law Division Decision Dismissing an Amended Summons for Leave to Appeal Under Legal Profession Act 2004 (nsw), S 385 / Court of Appeal Determination of Competency of Appeal and Application for Leave to Appeal
Outcome
Appeal in proceedings 2022/184703 dismissed as incompetent; leave to appeal in proceedings 2022/266023 refused, with costs.
Legal Topics
['procedural Fairness' 'extension of Time' 'leave to Appeal' 'interlocutory Orders' 'summary Dismissal' 'gross Sum Costs Order' 'gst in Costs Order']
['appeals' 'civil Procedure' 'costs' 'legal Profession Costs Assessment'] ['procedural Fairness' 'extension of Time' 'leave to Appeal' 'interlocutory Orders' 'summary Dismissal' 'gross Sum Costs Order' 'gst in Costs Order']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Purported Appeal as of Right From a Supreme Court Common Law Division Decision Dismissing an Amended Summons for Leave to Appeal Under Legal Profession Act 2004 (nsw), S 385 / Court of Appeal Determination of Competency of Appeal and Application for Leave to Appeal

Legal Issues

  1. 1 ["Whether the primary judge denied procedural fairness by determining the application for an extension of time at the hearing of Aon's motion to dismiss or strike out the summons." 'Whether leave should be granted to file further submissions after the appeal hearing.' 'Whether the primary judge applied an incorrect test by referring to a need for a strongly arguable case for leave.' "Whether the primary judge erred in ordering the applicants to pay Aon's costs of the motion and dismissed proceedings." 'Whether leave should be granted to appeal a gross sum costs order of $80,000 inclusive of GST.' 'Whether an order summarily dismissing proceedings is interlocutory so that leave to appeal is required.']

Ratio Decidendi

Leave to appeal was refused because it was not reasonably arguable that the primary judge denied procedural fairness: the extension of time issue was raised in written submissions, identified as an issue, addressed in oral argument, and the primary judge made clear that he intended to determine it. Given the lengthy delay, substantial prejudice and extremely weak proposed appeal, the primary judge did not err in refusing an extension of time, and the consequent dismissal of the out-of-time summons was not shown to be erroneous. The purported appeal as of right was incompetent because the summary dismissal order was interlocutory and required leave.

Court Disposition

Appeal in proceedings 2022/184703 dismissed as incompetent; leave to appeal in proceedings 2022/266023 refused, with costs.

Orders

  • ['In Proceedings 2022/184703: The appeal is dismissed as incompetent.' "In Proceedings 2022/184703: The appellants pay the respondents costs of the appeal, including of the appellants' motion filed on 5 August 2022." 'In Proceedings 2022/266023: Leave to appeal is refused, with costs.']