French v Bremner (No 2) [2020] NSWCA 211

French v Bremner (No 2) [2020] NSWCA 211

The motions were dismissed because Dr Bremner's delays and failures to comply with directions did not warrant summary dismissal of the cross-appeal, particularly where hearing dates were fixed earlier than Mr French had sought and Dr Bremner complied with the latest filing direction. Ms Bakey did not establish that the cross-appeal was frivolous, vexatious, brought for an improper purpose, or should be dismissed for a technical procedural irregularity, and her hardship did not justify separate summary disposal before the listed appeal hearing.

Jurisdiction
Australia
Judgment Date
04 September 2020
Procedural Posture
Appeal and Cross Appeal; Notices of Motion to Dismiss Cross Appeal / Interlocutory Motions in the Court of Appeal
Outcome
Both motions filed on 4 August 2020 were dismissed.
Legal Topics
['want of Due Despatch' 'dismissal of Cross Appeal' 'non Compliance With Directions' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'procedural Irregularity in Cross Appeal' 'costs of Motions']
['civil Procedure' 'appeals'] ['want of Due Despatch' 'dismissal of Cross Appeal' 'non Compliance With Directions' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'procedural Irregularity in Cross Appeal' 'costs of Motions']

Case Brief

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Procedural Posture

Appeal and Cross Appeal; Notices of Motion to Dismiss Cross Appeal / Interlocutory Motions in the Court of Appeal

Legal Issues

  1. 1 ["Whether Dr Bremner's cross-appeal should be dismissed for want of due despatch under Uniform Civil Procedure Rules 2005 (NSW), r 12.7." 'Whether the reply and defence to the notice of appeal should be struck out for want of due despatch.' 'Whether the cross-appeal against Ms Bakey should be dismissed as frivolous or an abuse of process under Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1).' 'Whether naming Ms Bakey, who was not an appellant, as a cross-respondent created a procedural irregularity requiring dismissal of the cross-appeal.' "Whether a stay of the orders of Parker J was necessary on Mr French's amended motion."]

Ratio Decidendi

The motions were dismissed because Dr Bremner's delays and failures to comply with directions did not warrant summary dismissal of the cross-appeal, particularly where hearing dates were fixed earlier than Mr French had sought and Dr Bremner complied with the latest filing direction. Ms Bakey did not establish that the cross-appeal was frivolous, vexatious, brought for an improper purpose, or should be dismissed for a technical procedural irregularity, and her hardship did not justify separate summary disposal before the listed appeal hearing.

Court Disposition

Both motions filed on 4 August 2020 were dismissed.

Orders

  • ['In relation to the motion filed by Mr French on 4 August 2020, dismiss the motion.' "Order that the costs of Mr French's motion be costs in the cross-appeal." 'In relation to the motion filed by Ms Bakey on 4 August 2020, dismiss the motion.' "Order that the second cross-respondent's costs of the motion be her...