Von Reisner v Chepurin [2010] NSWCA 29

Von Reisner v Chepurin [2010] NSWCA 29

Leave to appeal was refused because no arguable error was shown in the Judicial Registrar's refusal to permit the proposed amendment or to review that decision, given the absence of an amended pleading, the lateness of the application, the lack of supporting evidence before the Registrar, and the proper application of the Civil Procedure Act 2005. No arguable error was shown in Judge Cogswell's refusal to order a jury trial because he applied s 76A of the District Court Act 1973 and the governing authority, and considered the relevant material. Later evidence about the crowns did not establish error in the decisions under review.

Jurisdiction
Australia
Judgment Date
26 February 2010
Procedural Posture
Application for Extension of Time and Leave to Appeal / Judgment on Summons in the Court of Appeal From Decisions of the District Court Judicial Registrar and Judge Cogswell DCJ
Outcome
Time extended; leave to appeal refused; applicant ordered to pay the respondents' costs of the application.
Legal Topics
['leave to Appeal' 'extension of Time' 'amendment of Statement of Claim' 'misleading and Deceptive Conduct' 'fresh Evidence on Appeal' 'jury Trial in District Court' 'dental Treatment Negligence and Contract Claims']
['civil Procedure' 'appeals' 'personal Injury' 'fair Trading' 'limitation of Actions'] ['leave to Appeal' 'extension of Time' 'amendment of Statement of Claim' 'misleading and Deceptive Conduct' 'fresh Evidence on Appeal' 'jury Trial in District Court' 'dental Treatment Negligence and Contract Claims']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal / Judgment on Summons in the Court of Appeal From Decisions of the District Court Judicial Registrar and Judge Cogswell DCJ

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to file and serve the summons for leave to appeal.' "Whether leave to appeal should be granted from the Judicial Registrar's refusal to permit amendment of the statement of claim on 3 November 2008." "Whether leave to appeal should be granted from the Judicial Registrar's refusal on 15 December 2008 to review or recall the earlier decision." "Whether leave to appeal should be granted from Judge Cogswell's refusal on 20 March 2009 to order a jury trial." 'Whether later evidence, including evidence about the chemical composition of crowns, should be taken into account when reviewing the discretionary decisions below.']

Ratio Decidendi

Leave to appeal was refused because no arguable error was shown in the Judicial Registrar's refusal to permit the proposed amendment or to review that decision, given the absence of an amended pleading, the lateness of the application, the lack of supporting evidence before the Registrar, and the proper application of the Civil Procedure Act 2005. No arguable error was shown in Judge Cogswell's refusal to order a jury trial because he applied s 76A of the District Court Act 1973 and the governing authority, and considered the relevant material. Later evidence about the crowns did not establish error in the decisions under review.

Court Disposition

Time extended; leave to appeal refused; applicant ordered to pay the respondents' costs of the application.

Orders

  • ['Extend time to the applicant in which to file and serve summons for leave to appeal up to and including the date that the summons for leave to appeal was filed in this matter;' 'Refuse leave to appeal against the decisions of the Judicial Registrar of the District Court and Judge Cogswell of the District Court as...