Mulligan v Westpac [2016] NSWCA 273

Mulligan v Westpac [2016] NSWCA 273

Leave to appeal was refused because the challenged rulings were interlocutory matters of practice and procedure, reversal would not avoid a trial, and the applicants did not demonstrate clear material error or clear and irreparable prejudice. The late evidence concerned SGF's pleaded case, the executed document had only been obtained shortly before trial, any prejudice was ameliorated by an adjournment of almost three months and directions allowing subpoenas, notices to produce and reply evidence, and the costs issue could properly be reserved until the conclusion of the trial.

Jurisdiction
Australia
Judgment Date
30 September 2016
Procedural Posture
Application for Leave to Appeal / Interlocutory Appeal From District Court Civil Proceedings
Outcome
Leave to appeal refused with costs.
Legal Topics
['late Service of Evidence' 'tender of Evidence' 'adjournment' 'costs' 'leave to Appeal' 'case Management Orders']
['practice and Procedure' 'civil Procedure'] ['late Service of Evidence' 'tender of Evidence' 'adjournment' 'costs' 'leave to Appeal' 'case Management Orders']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Interlocutory Appeal From District Court Civil Proceedings

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from interlocutory rulings in District Court proceedings concerning practice and procedure.' 'Whether the primary judge erred in permitting SGF to tender evidence served after the date fixed by case management orders.' 'Whether the applicants suffered clear and irreparable prejudice from the late served evidence.' 'Whether the primary judge erred in refusing to stand the proceedings over generally and instead adjourning the trial part heard.' 'Whether the primary judge erred in reserving the question of costs concerning the late served evidence.']

Ratio Decidendi

Leave to appeal was refused because the challenged rulings were interlocutory matters of practice and procedure, reversal would not avoid a trial, and the applicants did not demonstrate clear material error or clear and irreparable prejudice. The late evidence concerned SGF's pleaded case, the executed document had only been obtained shortly before trial, any prejudice was ameliorated by an adjournment of almost three months and directions allowing subpoenas, notices to produce and reply evidence, and the costs issue could properly be reserved until the conclusion of the trial.

Court Disposition

Leave to appeal refused with costs.

Orders

  • ['Leave to appeal refused;' "The applicants pay the respondents' costs as agreed or assessed."]