Clark v Robards (No 2) [2016] NSWCA 249

Clark v Robards (No 2) [2016] NSWCA 249

Although Emmett AJA had wrongly observed in the earlier appeal judgment that no amended statement of claim had been filed in the 2002 Proceedings, the 2002 Proceedings were not before the Court and their status was not material to the reasoning for dismissing the appeal concerning the 2005 Proceedings. The asserted failure to consider the appellant's difficulties as a prisoner was not established because the earlier reasons expressly addressed that matter. Accordingly, no material misapprehension justifying reopening was established.

Jurisdiction
Australia
Judgment Date
07 September 2016
Procedural Posture
Practice and Procedure; Notice of Motion to Reopen Appeal / On the Papers After Dismissal of Appeal
Outcome
The notice of motion filed 22 August 2016 is dismissed.
Legal Topics
['reopening Appeal' 'misapprehension of Fact' 'materiality of Factual Error' 'dismissal of Proceedings']
['practice and Procedure' 'civil Procedure' 'appellate Procedure'] ['reopening Appeal' 'misapprehension of Fact' 'materiality of Factual Error' 'dismissal of Proceedings']

Case Brief

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Procedural Posture

Practice and Procedure; Notice of Motion to Reopen Appeal / On the Papers After Dismissal of Appeal

Legal Issues

  1. 1 ['Whether the Court should reopen the appeal because of an alleged misapprehension of fact concerning whether an amended statement of claim had been filed in the 2002 proceedings.' "Whether the Court failed to have regard to the appellant's difficulty in pleading a claim while in custody." "Whether any factual error was material to the Court's reasoning in dismissing the appeal."]

Ratio Decidendi

Although Emmett AJA had wrongly observed in the earlier appeal judgment that no amended statement of claim had been filed in the 2002 Proceedings, the 2002 Proceedings were not before the Court and their status was not material to the reasoning for dismissing the appeal concerning the 2005 Proceedings. The asserted failure to consider the appellant's difficulties as a prisoner was not established because the earlier reasons expressly addressed that matter. Accordingly, no material misapprehension justifying reopening was established.

Court Disposition

The notice of motion filed 22 August 2016 is dismissed.

Orders

  • ['The notice of motion filed 22 August 2016 is dismissed.']