Curtis v Charles Darwin University [2013] NSWSC 1558

Curtis v Charles Darwin University [2013] NSWSC 1558

The late commencement of the plaintiff's appeal did not render it incompetent because the right of appeal under s 39 of the Local Court Act 2007 (NSW) was not itself limited by a statutory time condition; the lateness was an irregularity capable of cure. The appropriate course was to require a motion for an extension of time with supporting affidavit to be determined at the appeal hearing. The stay application was withdrawn, and in any event would have been refused because the costs amount was small, the defendant could repay it with interest if the appeal succeeded, and no stultification of the appeal was shown.

Jurisdiction
Australia
Judgment Date
18 October 2013
Procedural Posture
Appeal From the Local Court of New South Wales / Procedural Ruling on Late Appeal, Extension of Time Procedure, Listing, and Withdrawn Stay Application
Outcome
Procedural directions made for an extension of time motion and appeal preparation; defendant's costs of the day to be its costs in the appeal; plaintiff's stay application noted as withdrawn.
Legal Topics
['extension of Time to Appeal' 'appeal From Local Court' 'irregularity' 'stay of Costs Order' 'case Management']
['practice and Procedure' 'civil Procedure'] ['extension of Time to Appeal' 'appeal From Local Court' 'irregularity' 'stay of Costs Order' 'case Management']

Case Brief

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Procedural Posture

Appeal From the Local Court of New South Wales / Procedural Ruling on Late Appeal, Extension of Time Procedure, Listing, and Withdrawn Stay Application

Legal Issues

  1. 1 ['Whether an appeal from the Local Court filed out of time without a prayer for an extension of time was incompetent.' 'Whether the late filing irregularity could be cured by the Court nunc pro tunc.' "How the plaintiff's proposed extension of time application should be managed procedurally." 'Whether the plaintiff should obtain a stay of the Local Court costs order.']

Ratio Decidendi

The late commencement of the plaintiff's appeal did not render it incompetent because the right of appeal under s 39 of the Local Court Act 2007 (NSW) was not itself limited by a statutory time condition; the lateness was an irregularity capable of cure. The appropriate course was to require a motion for an extension of time with supporting affidavit to be determined at the appeal hearing. The stay application was withdrawn, and in any event would have been refused because the costs amount was small, the defendant could repay it with interest if the appeal succeeded, and no stultification of the appeal was shown.

Court Disposition

Procedural directions made for an extension of time motion and appeal preparation; defendant's costs of the day to be its costs in the appeal; plaintiff's stay application noted as withdrawn.

Orders

  • ['Direct the plaintiff to file a Notice of Motion seeking an extension of time to bring his appeal under r. 50.3 of the UCPR together with an affidavit in support of the motion within 14 days of the date hereof.' "Direct that the motion be endorsed that it is to be made returnable on a date fixed for hearing of the...