Olsen v Mentink [2019] NSWCA 279

Olsen v Mentink [2019] NSWCA 279

UCPR r 51.9(1)(b) authorises an application for a period other than three months for filing and service when an appeal has been commenced, but does not authorise a putative respondent to abridge the period for commencing an appeal before any notice of appeal has been filed. UCPR r 1.12 is subject to Pt 51 and cannot be used to undercut that regime. In any event, the evidence of stress and the proposed accelerated timetable did not justify curtailing Ms Mentink's ordinary right to commence an appeal within the prescribed period, particularly given the risk of unfairness and the practical likelihood that any appeal would not be determined before early 2020.

Jurisdiction
Australia
Judgment Date
18 November 2019
Procedural Posture
Application in the Court of Appeal Concerning Time for Commencement of a Putative Appeal and Expedition / After Judgment and Orders in the Supreme Court of New South Wales and After Filing and Service of a Notice of Intention to Appeal, Before Any Notice of Appeal Was Filed
Outcome
Paragraph 1 of the summons was dismissed with costs; the balance of the summons was stood over to be treated as a notice of motion for expedition if an appeal was filed.
Legal Topics
['time for Appeal' 'notice of Intention to Appeal' 'abridgment of Time' 'court of Appeal Jurisdiction and Power' 'expedition']
['civil Procedure' 'appeals'] ['time for Appeal' 'notice of Intention to Appeal' 'abridgment of Time' 'court of Appeal Jurisdiction and Power' 'expedition']

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Procedural Posture

Application in the Court of Appeal Concerning Time for Commencement of a Putative Appeal and Expedition / After Judgment and Orders in the Supreme Court of New South Wales and After Filing and Service of a Notice of Intention to Appeal, Before Any Notice of Appeal Was Filed

Legal Issues

  1. 1 ['Whether a respondent to a putative appeal can shorten the three month period within which any appeal is to be brought after a notice of intention to appeal has been filed and served.' 'Whether UCPR r 51.9(1)(b) or r 1.12 empowered the Court of Appeal to abridge the time for filing a notice of appeal before an appeal had been commenced.' 'Whether, if power existed, the Court should make the order sought on the evidence relied on by Mr Olsen.']

Ratio Decidendi

UCPR r 51.9(1)(b) authorises an application for a period other than three months for filing and service when an appeal has been commenced, but does not authorise a putative respondent to abridge the period for commencing an appeal before any notice of appeal has been filed. UCPR r 1.12 is subject to Pt 51 and cannot be used to undercut that regime. In any event, the evidence of stress and the proposed accelerated timetable did not justify curtailing Ms Mentink's ordinary right to commence an appeal within the prescribed period, particularly given the risk of unfairness and the practical likelihood that any appeal would not be determined before early 2020.

Court Disposition

Paragraph 1 of the summons was dismissed with costs; the balance of the summons was stood over to be treated as a notice of motion for expedition if an appeal was filed.

Orders

  • ['Dismiss paragraph 1 of the summons filed 5 November 2019, with costs.' "Stand over the balance of the summons into the Registrar's list on Monday 3 February 2020, to be treated as a notice of motion for expedition in the event that an appeal has been filed."]