Young v Cooke [2016] NSWSC 1386

Young v Cooke [2016] NSWSC 1386

The summons could not possibly succeed because the relief sought depended on the proposition that a Local Court order could subsume or affect a costs order made by the Court of Appeal. Given the judicial hierarchy, and because s 148(3)(b) of the Civil Procedure Act 2005 (NSW) did not confer such power, the proceedings disclosed no reasonable cause of action and were so clearly within UCPR r 13.4 that they had to be dismissed with costs.

Jurisdiction
Australia
Judgment Date
27 September 2016
Procedural Posture
Summons Seeking Declaratory Relief and Defendants' Notice of Motion for Dismissal Pursuant to UCPR R 13.4 / Hearing of Notice of Motion to Dismiss Proceedings
Outcome
Summons dismissed with costs.
Legal Topics
['dismissal of Proceedings Under UCPR R 13.4' 'costs Orders' 'judicial Hierarchy' 'local Court Jurisdiction' 'perjury Prosecution Leave']
['practice and Procedure' 'costs' 'courts and Jurisdiction'] ['dismissal of Proceedings Under UCPR R 13.4' 'costs Orders' 'judicial Hierarchy' 'local Court Jurisdiction' 'perjury Prosecution Leave']

Case Brief

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Procedural Posture

Summons Seeking Declaratory Relief and Defendants' Notice of Motion for Dismissal Pursuant to UCPR R 13.4 / Hearing of Notice of Motion to Dismiss Proceedings

Legal Issues

  1. 1 ['Whether the costs assessed under a Court of Appeal costs order were subsumed in a later Local Court costs order.' 'Whether the Local Court had power to affect a costs order made by the Court of Appeal.' 'Whether s 148(3)(b) of the Civil Procedure Act 2005 (NSW) could confer power on the Local Court to affect a Court of Appeal costs order.' 'Whether the proceedings should be dismissed under UCPR r 13.4.' 'Whether the Supreme Court could grant leave to prosecute alleged perjury after the magistrate before whom the alleged perjury occurred refused leave.']

Ratio Decidendi

The summons could not possibly succeed because the relief sought depended on the proposition that a Local Court order could subsume or affect a costs order made by the Court of Appeal. Given the judicial hierarchy, and because s 148(3)(b) of the Civil Procedure Act 2005 (NSW) did not confer such power, the proceedings disclosed no reasonable cause of action and were so clearly within UCPR r 13.4 that they had to be dismissed with costs.

Court Disposition

Summons dismissed with costs.

Orders

  • ['Order that the summons filed on 8 September 2016 be dismissed.' "Order the plaintiff to pay the defendants' costs of the proceedings which include the costs of today's motion."]