Clark v Robards (No 2) [2015] NSWCA 190

Clark v Robards (No 2) [2015] NSWCA 190

The applicant's motion to re-open the earlier judgment failed because neither s 50F of the Limitation Act nor the conduct of the prior proceeding justified doing so; however, as leave to appeal had already been granted, leave should also be granted under the Felons Act to commence relevant proceedings. Otherwise, the remaining relief sought in the motions was refused.

Parties
Applicant: Peter Frederick Clark; First Respondent: Timothy Neil Robards; Second Respondent: Terrence Lloyd Robards; Third Respondent: State of New South Wales
Jurisdiction
Australia
Judgment Date
08 July 2015
Procedural Posture
Application for Leave to Appeal / Post Judgment Motions; Consequential Orders
Outcome
Motion to reopen dismissed; grant of limited leave under Felons Act; costs to be in the appeal.
Legal Topics
Application for Leave to Appeal, Reopening Application, Ambiguity of Court Orders, Felons (civil Proceedings) Act, Limitation Act—persons Under Disability
Practice and Procedure Civil Procedure Application for Leave to Appeal Reopening Application Ambiguity of Court Orders Felons (civil Proceedings) Act Limitation Act—persons Under Disability

Case Brief

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Parties

Peter Frederick Clark

Applicant

Timothy Neil Robards

First Respondent

Terrence Lloyd Robards

Second Respondent

State of New South Wales

Third Respondent

Procedural Posture

Application for Leave to Appeal / Post Judgment Motions; Consequential Orders

Legal Issues

  1. 1 Whether the prior order was based on a misunderstanding or was ambiguous
  2. 2 Whether leave under the Felons (Civil Proceedings) Act 1981 (NSW) should have been granted with leave to appeal
  3. 3 Whether failure to apply s 50F of the Limitation Act 1969 (NSW) affected the proceeding

Ratio Decidendi

The applicant's motion to re-open the earlier judgment failed because neither s 50F of the Limitation Act nor the conduct of the prior proceeding justified doing so; however, as leave to appeal had already been granted, leave should also be granted under the Felons Act to commence relevant proceedings. Otherwise, the remaining relief sought in the motions was refused.

Court Disposition

Motion to reopen dismissed; grant of limited leave under Felons Act; costs to be in the appeal.

Orders

  • Grant the applicant leave to commence proceedings for leave to appeal and, to the extent leave has been granted, to commence an appeal from the judgment of Hidden J given on 17 June 2014, pursuant to the Felons (Civil Proceedings) Act 1981.
  • Otherwise dismiss the motions.