Johnson v MacKinnon [2020] NSWCA 258

Johnson v MacKinnon [2020] NSWCA 258

The application to vacate the hearing dates was refused because the appellant's explanations did not justify further delay: COVID-19 difficulties were not particularised, financial difficulties had been resolved, the complexity of the appeal was manageable by distilling issues already identified, a third hearing day was available, and further delay would be unfair to the class members awaiting completion of their cases. The extension of time issue was not determined by the single judge because the proposed appeal appeared potentially fairly arguable and was better reserved for the full bench at the appeal hearing.

Jurisdiction
Australia
Judgment Date
14 September 2020
Procedural Posture
Civil Procedure Application in an Appeal Arising From a Representative Proceeding / Single Judge Procedural Ruling on Application to Vacate Hearing Dates; Extension of Time Question Reserved for the Full Bench at the Appeal Hearing
Outcome
Application to vacate the hearing date refused; appellant ordered to pay the respondent's costs of the matters heard; extension of time question reserved for the full bench at the appeal hearing.
Legal Topics
['application to Vacate Hearing Date' 'extension of Time to File Notice of Appeal' 'delay' 'prejudice to Class Members' 'costs']
['civil Procedure' 'appeals' 'representative Proceedings'] ['application to Vacate Hearing Date' 'extension of Time to File Notice of Appeal' 'delay' 'prejudice to Class Members' 'costs']

Case Brief

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Procedural Posture

Civil Procedure Application in an Appeal Arising From a Representative Proceeding / Single Judge Procedural Ruling on Application to Vacate Hearing Dates; Extension of Time Question Reserved for the Full Bench at the Appeal Hearing

Legal Issues

  1. 1 ["Whether the appellant's application to vacate the hearing dates of 10 and 11 November 2020 should be granted." 'Whether the question of an extension of time to file the notice of appeal should be determined by a single judge or reserved for the full bench at the hearing of the appeal.']

Ratio Decidendi

The application to vacate the hearing dates was refused because the appellant's explanations did not justify further delay: COVID-19 difficulties were not particularised, financial difficulties had been resolved, the complexity of the appeal was manageable by distilling issues already identified, a third hearing day was available, and further delay would be unfair to the class members awaiting completion of their cases. The extension of time issue was not determined by the single judge because the proposed appeal appeared potentially fairly arguable and was better reserved for the full bench at the appeal hearing.

Court Disposition

Application to vacate the hearing date refused; appellant ordered to pay the respondent's costs of the matters heard; extension of time question reserved for the full bench at the appeal hearing.

Orders

  • ["The appellant's application to vacate the hearing date is refused." "The appellant is to pay the respondent's costs of the matters heard today." 'The matter will be listed for a third hearing date being 12 November 2020.']