Dunn, Marty Heath v Mee Youn Kim [2023] NSWSC 499

Dunn, Marty Heath v Mee Youn Kim [2023] NSWSC 499

The Court refused to extend time and dismissed the summons because the delay in seeking leave to appeal was unexplained and unjustified, the summons did not properly seek an extension of time or explain the delay, and there was no apparent legal purpose in setting aside the Judicial Registrar's orders. The Judicial Registrar had accepted the medical evidence as a satisfactory explanation for the plaintiff's non-appearance, but refused an adjournment because it would be futile: the plaintiff had not addressed the essential problem identified by Taylor DCJ, namely the need to join or reinstate Discover the Earth Pty Ltd, and there was no evidential basis to conclude that the plaintiff had a...

Jurisdiction
Australia
Judgment Date
12 May 2023
Procedural Posture
Application for Leave to Appeal From Orders of a Judicial Registrar in the District Court Dismissing Proceedings / Application for Extension of Time and Leave to Appeal in the Supreme Court of New South Wales, Common Law Division
Outcome
Extension of time refused; summons seeking leave to appeal dismissed; plaintiff ordered to pay the second defendant's costs.
Legal Topics
['leave to Appeal' 'extension of Time' 'summary Dismissal' 'adjournment' 'non Attendance Due to Medical Evidence' 'striking Out Pleadings' 'costs']
['civil Procedure' 'appeals'] ['leave to Appeal' 'extension of Time' 'summary Dismissal' 'adjournment' 'non Attendance Due to Medical Evidence' 'striking Out Pleadings' 'costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Orders of a Judicial Registrar in the District Court Dismissing Proceedings / Application for Extension of Time and Leave to Appeal in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ["Whether time should be extended for the plaintiff to file an application for leave to appeal from the Judicial Registrar's orders entered on 11 November 2020." 'Whether leave to appeal should be granted from orders dismissing the District Court proceedings under rr 13.4 and 12.7 of the UCPR 2005.' "Whether the Judicial Registrar erred by refusing an adjournment despite medical evidence explaining the plaintiff's non-attendance." 'Whether setting aside the dismissal orders would serve any legal purpose given the failure to join or reinstate Discover the Earth Pty Ltd and the absence of an apparent cause of action against the defendants.']

Ratio Decidendi

The Court refused to extend time and dismissed the summons because the delay in seeking leave to appeal was unexplained and unjustified, the summons did not properly seek an extension of time or explain the delay, and there was no apparent legal purpose in setting aside the Judicial Registrar's orders. The Judicial Registrar had accepted the medical evidence as a satisfactory explanation for the plaintiff's non-appearance, but refused an adjournment because it would be futile: the plaintiff had not addressed the essential problem identified by Taylor DCJ, namely the need to join or reinstate Discover the Earth Pty Ltd, and there was no evidential basis to conclude that the plaintiff had a...

Court Disposition

Extension of time refused; summons seeking leave to appeal dismissed; plaintiff ordered to pay the second defendant's costs.

Orders

  • ['Refuse to extend time for the filing of the application for leave to appeal from the orders of the judicial registrar in the District Court entered on 11 November 2020.' 'Dismiss the summons seeking leave to appeal filed on 29 September 2022.' "Order that the plaintiff pay the second defendant's costs of the...