McAlinden v Danks & Bourke [2003] NSWSC 86

McAlinden v Danks & Bourke [2003] NSWSC 86

The Magistrate was not satisfied that there was a good reason for the plaintiff's failure to attend the arbitration, based on inconsistent evidence regarding notice of the hearing. It was open to the Magistrate to make this finding, and the discretion was properly exercised. There was no error of law, and the appeal must be dismissed.

Parties
Plaintiff: Colm Martin McAlinden; Defendant: Pedr Danks; Defendant: Craig Bourke
Jurisdiction
Australia
Judgment Date
03 March 2003
Procedural Posture
Appeal / Judgment on Appeal From Local Court Decision
Outcome
Appeal dismissed; Local Court order affirmed; costs to defendants
Legal Topics
Appeal, Extension of Time, Rehearing Application, Exercise of Discretion
Civil Procedure Appeal Extension of Time Rehearing Application Exercise of Discretion

Case Brief

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Parties

Colm Martin McAlinden

Plaintiff

Pedr Danks

Defendant

Craig Bourke

Defendant

Procedural Posture

Appeal / Judgment on Appeal From Local Court Decision

Legal Issues

  1. 1 Whether the Local Court Magistrate erred in refusing the rehearing application after dismissal in plaintiff's absence
  2. 2 Whether the discretion to refuse extension of time was properly exercised
  3. 3 Whether there was good reason for plaintiff's failure to attend arbitration

Ratio Decidendi

The Magistrate was not satisfied that there was a good reason for the plaintiff's failure to attend the arbitration, based on inconsistent evidence regarding notice of the hearing. It was open to the Magistrate to make this finding, and the discretion was properly exercised. There was no error of law, and the appeal must be dismissed.

Court Disposition

Appeal dismissed; Local Court order affirmed; costs to defendants

Orders

  • The order of Madgwick LCM dated 18 July 2002 is affirmed.
  • The summons is dismissed.