Malouf v Prince [2009] NSWCA 159

Malouf v Prince [2009] NSWCA 159

Leave to appeal was refused because the challenged orders were matters of practice and procedure attracting caution on appellate review; any injustice from the refusal of the adjournment had been effectively remedied by the stay; the applicant did not demonstrate an arguable Fox v Percy error in the primary judge's factual findings supporting the costs orders; and no special ground was established for reception of further evidence. The respondent's abuse of process motion was otiose once leave was refused.

Jurisdiction
Australia
Judgment Date
24 June 2009
Procedural Posture
Application for Leave to Appeal From District Court Procedural and Costs Orders, With Motions to Admit Further Evidence and to Dismiss the Leave Application as an Abuse of Process / Court of Appeal Application for Leave to Appeal
Outcome
Application for leave to appeal refused with costs; applicant's motion to allow further evidence dismissed; respondent's motion to dismiss the application for leave to appeal dismissed with no order as to costs.
Legal Topics
['leave to Appeal' 'practice and Procedure' 'adjournment' 'discretionary Orders' 'indemnity Costs' 'further Evidence on Appeal' 'abuse of Process']
['civil Procedure' 'appeals' 'costs' 'defamation' 'trade Practices'] ['leave to Appeal' 'practice and Procedure' 'adjournment' 'discretionary Orders' 'indemnity Costs' 'further Evidence on Appeal' 'abuse of Process']

Case Brief

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Procedural Posture

Application for Leave to Appeal From District Court Procedural and Costs Orders, With Motions to Admit Further Evidence and to Dismiss the Leave Application as an Abuse of Process / Court of Appeal Application for Leave to Appeal

Legal Issues

  1. 1 ["Whether leave to appeal should be granted in relation to the primary judge's orders concerning adjournment and costs." 'Whether any injustice from the refusal of the adjournment remained after the stay granted by Beazley JA.' "Whether the applicant demonstrated an arguable error in the primary judge's factual findings of the kind identified in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118." 'Whether further evidence should be admitted on the appeal under s 75A(8), Supreme Court Act 1970.' "Whether the respondent's motion to dismiss the leave application as an abuse of process should be determined."]

Ratio Decidendi

Leave to appeal was refused because the challenged orders were matters of practice and procedure attracting caution on appellate review; any injustice from the refusal of the adjournment had been effectively remedied by the stay; the applicant did not demonstrate an arguable Fox v Percy error in the primary judge's factual findings supporting the costs orders; and no special ground was established for reception of further evidence. The respondent's abuse of process motion was otiose once leave was refused.

Court Disposition

Application for leave to appeal refused with costs; applicant's motion to allow further evidence dismissed; respondent's motion to dismiss the application for leave to appeal dismissed with no order as to costs.

Orders

  • ['Application for leave to appeal refused with costs.' 'Motion to allow further evidence dismissed.' 'Applicant to pay the costs of the application before Beazley JA, for leave to appeal and the motion to allow further evidence.' "Respondent's motion for dismissal of the application for leave to appeal dismissed."...