Justelius & Anor v McIlwraith [2003] NSWSC 1039

Justelius & Anor v McIlwraith [2003] NSWSC 1039

The proceedings were dismissed because the challenge to the 5 November 2001 decision was out of time with no extension application, the 7 February 2002 decision was interlocutory and no leave was sought, and in any event the plaintiffs failed on the merits: the Magistrate considered the relevant material, was entitled to proceed ex parte and refuse an adjournment, was not required to disqualify herself, and the setting-aside rule did not apply because the order was not irregularly, illegally or against good faith.

Jurisdiction
Australia
Judgment Date
12 November 2003
Procedural Posture
Appeal or Challenge From Local Court Civil Proceedings / Supreme Court Hearing of Proceedings Challenging Local Court Decisions Made on 5 November 2001 and 7 February 2002
Outcome
The proceedings are dismissed. The plaintiffs are to pay the costs of the proceedings.
Legal Topics
['incompetent Appeal' 'extension of Time' 'leave to Appeal Interlocutory Decision' 'adjournment Application' 'ex Parte Hearing' 'setting Aside Judgment or Order' 'reasonable Apprehension of Bias']
['civil Procedure' 'local Court Procedure' 'arbitration in Civil Actions'] ['incompetent Appeal' 'extension of Time' 'leave to Appeal Interlocutory Decision' 'adjournment Application' 'ex Parte Hearing' 'setting Aside Judgment or Order' 'reasonable Apprehension of Bias']

Case Brief

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Procedural Posture

Appeal or Challenge From Local Court Civil Proceedings / Supreme Court Hearing of Proceedings Challenging Local Court Decisions Made on 5 November 2001 and 7 February 2002

Legal Issues

  1. 1 ['Whether the appeal against the decision made on 5 November 2001 was competent when brought out of time without an application for extension of time.' 'Whether the challenge to the interlocutory decision made on 7 February 2002 could be maintained without leave.' 'Whether the Magistrate failed to properly consider medical material on the adjournment application before dealing with the matter ex parte.' 'Whether the same Magistrate was required not to hear the application to vacate the orders made on 5 November 2001.' 'Whether Pt 26 r 3 of the Local Courts (Civil Claims) Rules 1988 permitted the setting aside of the order in the circumstances.']

Ratio Decidendi

The proceedings were dismissed because the challenge to the 5 November 2001 decision was out of time with no extension application, the 7 February 2002 decision was interlocutory and no leave was sought, and in any event the plaintiffs failed on the merits: the Magistrate considered the relevant material, was entitled to proceed ex parte and refuse an adjournment, was not required to disqualify herself, and the setting-aside rule did not apply because the order was not irregularly, illegally or against good faith.

Court Disposition

The proceedings are dismissed. The plaintiffs are to pay the costs of the proceedings.

Orders

  • ['The proceedings are dismissed.' 'The plaintiffs are to pay the costs of the proceedings.']