Battaglia v ING Bank (Australia) Limited [2014] NSWCA 387

Battaglia v ING Bank (Australia) Limited [2014] NSWCA 387

Leave to appeal was refused because the order setting the cross-claims down for hearing on 24 November 2014 was a discretionary case management order, no issue of principle or general public importance was shown, and the circumstances did not demonstrate manifest injustice: the applicants were in default on required medical evidence, had only a brief report indicating the first applicant was fit to participate, had notice that the respondent would seek the hearing date, chose lawyers and counsel with conflicting commitments, could have instructed others, and any concern about cross-examining Mr McCabe could be accommodated by possible deferral.

Jurisdiction
Australia
Judgment Date
10 November 2014
Procedural Posture
Application for Leave to Appeal / Summons Seeking Leave to Appeal From an Interlocutory Case Management Order Dismissed
Outcome
The summons seeking leave to appeal was dismissed with costs.
Legal Topics
['application for Leave to Appeal' 'case Management Discretion' 'cross Claims Set Down for Trial' 'manifest Injustice' 'guarantors']
['civil Procedure' 'appeals'] ['application for Leave to Appeal' 'case Management Discretion' 'cross Claims Set Down for Trial' 'manifest Injustice' 'guarantors']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Summons Seeking Leave to Appeal From an Interlocutory Case Management Order Dismissed

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from a discretionary order setting cross-claims down for hearing at the same time as other aspects of the proceedings.' 'Whether the challenged case management order wrought manifest injustice to the applicants.']

Ratio Decidendi

Leave to appeal was refused because the order setting the cross-claims down for hearing on 24 November 2014 was a discretionary case management order, no issue of principle or general public importance was shown, and the circumstances did not demonstrate manifest injustice: the applicants were in default on required medical evidence, had only a brief report indicating the first applicant was fit to participate, had notice that the respondent would seek the hearing date, chose lawyers and counsel with conflicting commitments, could have instructed others, and any concern about cross-examining Mr McCabe could be accommodated by possible deferral.

Court Disposition

The summons seeking leave to appeal was dismissed with costs.

Orders

  • ['The summons seeking leave to appeal is dismissed.' "The applicants are to pay the respondent's costs of the proceedings in this Court."]