Duchesne v Master Education Services Pty Ltd [2008] NSWIRComm 233

Duchesne v Master Education Services Pty Ltd [2008] NSWIRComm 233

Although the Court gave the applicants the benefit of the doubt that they had appealed or at least intended to appeal the refusal of legal aid, the appeal or intention to appeal was not bona fide. The applicants' solicitors delayed for four months before providing grounds, did not disclose the true position to the Court or respondent, and used the incomplete appeal to delay trial dates or the respondent's dismissal motion. Section 57 of the Legal Aid Commission Act 1979 therefore did not entitle the applicants to an adjournment.

Jurisdiction
Australia
Judgment Date
04 December 2008
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996; Unfair Contract Matter / Interlocutory Judgment on Applicants' Request for an Adjournment Under S 57 of the Legal Aid Commission Act 1979 in Response to Respondent's Motion to Dismiss for Want of Prosecution
Outcome
Application for an adjournment under s 57 of the Legal Aid Commission Act 1979 refused; respondent's dismissal motion to proceed to hearing.
Legal Topics
['unfair Contract' 'interlocutory Proceedings' 'adjournment of Proceedings' 'appeal Against Refusal of Legal Aid' 'want of Prosecution' 'abuse of Process']
['industrial Law' 'practice and Procedure' 'legal Aid'] ['unfair Contract' 'interlocutory Proceedings' 'adjournment of Proceedings' 'appeal Against Refusal of Legal Aid' 'want of Prosecution' 'abuse of Process']

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Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996; Unfair Contract Matter / Interlocutory Judgment on Applicants' Request for an Adjournment Under S 57 of the Legal Aid Commission Act 1979 in Response to Respondent's Motion to Dismiss for Want of Prosecution

Legal Issues

  1. 1 ['Whether the applicants had appealed, or intended to appeal, the refusal of legal aid within s 57 of the Legal Aid Commission Act 1979.' 'Whether any appeal or intention to appeal was bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings.' 'Whether the proceedings should be adjourned under s 57 of the Legal Aid Commission Act 1979.']

Ratio Decidendi

Although the Court gave the applicants the benefit of the doubt that they had appealed or at least intended to appeal the refusal of legal aid, the appeal or intention to appeal was not bona fide. The applicants' solicitors delayed for four months before providing grounds, did not disclose the true position to the Court or respondent, and used the incomplete appeal to delay trial dates or the respondent's dismissal motion. Section 57 of the Legal Aid Commission Act 1979 therefore did not entitle the applicants to an adjournment.

Court Disposition

Application for an adjournment under s 57 of the Legal Aid Commission Act 1979 refused; respondent's dismissal motion to proceed to hearing.

Orders

  • ['The applicants are not entitled to an adjournment pursuant to s 57 of the Legal Aid Commission Act 1979.' "The respondent's notice of motion to dismiss the proceedings for want of prosecution will be heard on Thursday, 11 December 2008 at 2.00 pm."]