Rose v Tunstall & Ors (No 2) [2017] NSWSC 1425

Rose v Tunstall & Ors (No 2) [2017] NSWSC 1425

Leave to amend was allowed only for proposed grounds that were arguable questions of law. There was no operative delay precluding consideration of the application. Grounds alleging misdirection by failure to consider statutory alternatives in s 38 of the Associations Incorporation Act 1984 (NSW) and the ground concerning rejection of the Phillips Report were sufficiently arguable as questions of law. Grounds alleging immaterial interpretation of s 37, irrationality, illogicality, unreasonableness, an extension of time, or mixed questions of law and fact were disallowed because they were immaterial, factual in substance, otiose, or withdrawn.

Jurisdiction
Australia
Judgment Date
18 October 2017
Procedural Posture
Appeal From the Local Court on a Question of Law / Application for Leave to Amend Summons to Include Additional Grounds of Appeal
Outcome
Leave to amend granted in part; proposed grounds 1, 2, 2F, 2G, 2H and 2K permitted subject to redrafting; other proposed grounds rejected.
Legal Topics
['amendment of Originating Process' 'appeal From Local Court' 'questions of Law and Questions of Fact' 'liability of Officers of Incorporated Association for Debts Incurred While Insolvent' 'admission or Rejection of Evidence']
['civil Procedure' 'appeals' 'associations Incorporation' 'evidence'] ['amendment of Originating Process' 'appeal From Local Court' 'questions of Law and Questions of Fact' 'liability of Officers of Incorporated Association for Debts Incurred While Insolvent' 'admission or Rejection of Evidence']

Case Brief

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Procedural Posture

Appeal From the Local Court on a Question of Law / Application for Leave to Amend Summons to Include Additional Grounds of Appeal

Legal Issues

  1. 1 ['Whether leave should be granted under s 64 Civil Procedure Act 2005 (NSW) to amend the summons to include additional grounds of appeal.' 'Whether the proposed grounds of appeal disclosed questions of law in an appeal from the Local Court under s 39 Local Court Act 2007 (NSW).' 'Whether delay provided a discretionary reason to refuse leave to amend.' 'Whether proposed grounds alleging irrationality, illogicality or unreasonableness raised errors of law rather than errors of fact.' 'Whether a proposed ground concerning rejection of the Phillips Report raised a question of law about admission or rejection of evidence.']

Ratio Decidendi

Leave to amend was allowed only for proposed grounds that were arguable questions of law. There was no operative delay precluding consideration of the application. Grounds alleging misdirection by failure to consider statutory alternatives in s 38 of the Associations Incorporation Act 1984 (NSW) and the ground concerning rejection of the Phillips Report were sufficiently arguable as questions of law. Grounds alleging immaterial interpretation of s 37, irrationality, illogicality, unreasonableness, an extension of time, or mixed questions of law and fact were disallowed because they were immaterial, factual in substance, otiose, or withdrawn.

Court Disposition

Leave to amend granted in part; proposed grounds 1, 2, 2F, 2G, 2H and 2K permitted subject to redrafting; other proposed grounds rejected.

Orders

  • ['Under s 64 Civil Procedure Act 2005, grant leave to the plaintiff to file the third amended summons commencing an appeal incorporating proposed grounds 1, 2, 2F, 2G, 2H and 2K redrafted as necessary to conform with these reasons within 14 days, that is, by 1 November 2017;' 'List the matter for further directions...