Diveva Pty Limited (ACN 003 799 815) v Nominal Defendant [2013] NSWCA 325

Diveva Pty Limited (ACN 003 799 815) v Nominal Defendant [2013] NSWCA 325

The extension of time was refused because the proposed appeal was not fairly arguable. Diveva's notice of appeal challenged only the 20 December 2012 orders on the cross-claims, but its first ground depended on overturning the earlier 2 October 2012 judgment on Mr Turnbull's claim that the accident occurred on a road within the meaning of the Motor Accidents Compensation Act 1999. Diveva was bound by that earlier judgment under s 22(3)(b) of the Civil Procedure Act 2005, and could not challenge an individual finding in the reasons without appealing the judgment or order itself. To challenge that judgment, Diveva would have had to seek relief setting it aside and join Mr Turnbull as a...

Jurisdiction
Australia
Judgment Date
04 October 2013
Procedural Posture
Interlocutory Application for Extension of Time to File Notice of Appeal / Court of Appeal Notice of Motion and Notice of Appeal From District Court Orders on Cross Claims
Outcome
Notice of motion for extension of time dismissed; notice of appeal dismissed; applicant ordered to pay the first and second respondents' costs.
Legal Topics
['extension of Time to Appeal' 'appeal From Interlocutory Order' 'necessary Parties to Appeal' 'issue Estoppel' 'nominal Defendant Recovery From Owner or Driver' 'cross Claims']
['civil Procedure' 'appellate Procedure' 'motor Accidents Compensation' 'contribution and Indemnity'] ['extension of Time to Appeal' 'appeal From Interlocutory Order' 'necessary Parties to Appeal' 'issue Estoppel' 'nominal Defendant Recovery From Owner or Driver' 'cross Claims']

Case Brief

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Procedural Posture

Interlocutory Application for Extension of Time to File Notice of Appeal / Court of Appeal Notice of Motion and Notice of Appeal From District Court Orders on Cross Claims

Legal Issues

  1. 1 ['Whether time should be extended for Diveva to file and serve a notice of appeal more than five months out of time.' "Whether the notice of appeal was fairly arguable where Diveva challenged only the orders on the cross-claims made on 20 December 2012 and did not appeal the judgment on Mr Turnbull's claim made on 2 October 2012." 'Whether Mr Turnbull was a necessary party to any appeal challenging the finding that the accident occurred on a road within the meaning of the Motor Accidents Compensation Act 1999.' 'Whether Diveva could challenge the finding that the roller was operated on a road without seeking to set aside the judgment in favour of Mr Turnbull against the Nominal Defendant.']

Ratio Decidendi

The extension of time was refused because the proposed appeal was not fairly arguable. Diveva's notice of appeal challenged only the 20 December 2012 orders on the cross-claims, but its first ground depended on overturning the earlier 2 October 2012 judgment on Mr Turnbull's claim that the accident occurred on a road within the meaning of the Motor Accidents Compensation Act 1999. Diveva was bound by that earlier judgment under s 22(3)(b) of the Civil Procedure Act 2005, and could not challenge an individual finding in the reasons without appealing the judgment or order itself. To challenge that judgment, Diveva would have had to seek relief setting it aside and join Mr Turnbull as a...

Court Disposition

Notice of motion for extension of time dismissed; notice of appeal dismissed; applicant ordered to pay the first and second respondents' costs.

Orders

  • ["The applicant's notice of motion filed 9 July 2013 be dismissed." 'The notice of appeal filed 25 June 2013 be dismissed.' "The applicant pay the first and second respondents' costs of the notice of motion and the appeal."]