Seidler v Carroll & O'Dea [2014] NSWCA 48

Seidler v Carroll & O'Dea [2014] NSWCA 48

Leave to appeal was refused because the applicant did not identify any error of principle or other appellable error, and the primary judge had given ample opportunity to replead before dismissing the proceedings for want of dispatch. The notice of appeal was incompetent because the amendment, document and dismissal judgments were interlocutory and appeal lay only by leave under s 101(2)(e) of the Supreme Court Act 1970 (NSW). The amended notice of motion was dismissed because, apart from matters already dealt with, it sought joinder and substantive relief concerning claims not made below or in any extant filed pleading and could not be raised for the first time on appeal.

Jurisdiction
Australia
Judgment Date
11 March 2014
Procedural Posture
Application for Leave to Appeal and Appeal From Interlocutory Supreme Court Judgments, With Notices of Motion / Court of Appeal Determination of Summons Seeking Leave to Appeal, Incompetence Notices of Motion and Amended Notice of Motion
Outcome
Summons seeking leave to appeal dismissed with costs; appeal filed on 26 September 2013 dismissed with costs; amended notice of motion dismissed with costs.
Legal Topics
['leave to Appeal' 'interlocutory Judgments or Orders' 'dismissal for Want of Dispatch' 'amendment of Pleadings' 'confidentiality Orders' 'joinder of Parties' 'costs']
['practice and Procedure' 'appeals' 'civil Procedure'] ['leave to Appeal' 'interlocutory Judgments or Orders' 'dismissal for Want of Dispatch' 'amendment of Pleadings' 'confidentiality Orders' 'joinder of Parties' 'costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From Interlocutory Supreme Court Judgments, With Notices of Motion / Court of Appeal Determination of Summons Seeking Leave to Appeal, Incompetence Notices of Motion and Amended Notice of Motion

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the amendment judgment, document judgment and dismissal judgment.' 'Whether the notice of appeal filed on 26 September 2013 was incompetent because the judgments below were interlocutory and required leave to appeal.' 'Whether the amended notice of motion should be dismissed where it sought joinder and substantive relief concerning claims not made below or in any extant filed pleading.' 'Whether costs should follow the dismissal of the summons, appeal and amended notice of motion.']

Ratio Decidendi

Leave to appeal was refused because the applicant did not identify any error of principle or other appellable error, and the primary judge had given ample opportunity to replead before dismissing the proceedings for want of dispatch. The notice of appeal was incompetent because the amendment, document and dismissal judgments were interlocutory and appeal lay only by leave under s 101(2)(e) of the Supreme Court Act 1970 (NSW). The amended notice of motion was dismissed because, apart from matters already dealt with, it sought joinder and substantive relief concerning claims not made below or in any extant filed pleading and could not be raised for the first time on appeal.

Court Disposition

Summons seeking leave to appeal dismissed with costs; appeal filed on 26 September 2013 dismissed with costs; amended notice of motion dismissed with costs.

Orders

  • ['Dismiss the summons seeking leave to appeal with costs.' 'Dismiss the appeal filed on 26 September 2013 with costs.' 'Dismiss the amended notice of motion with costs.']