Curtin v University of New South Wales (No. 3) [2008] NSWSC 1255

Curtin v University of New South Wales (No. 3) [2008] NSWSC 1255

The plaintiff's deliberate decision not to appeal, but instead to pursue amendment of pleadings, and the subsequent change in strategy after court time had already been spent on that basis, meant that justice did not require an extension of time to appeal be granted. The overriding purpose of civil procedure to ensure the just, quick and cheap resolution of disputes also weighed against granting the extension. The plaintiff failed to demonstrate that refusal would result in relevant injustice to displace the defendants' vested right to retain judgment.

Jurisdiction
Australia
Judgment Date
27 November 2008
Procedural Posture
Application for Extension of Time to Appeal / Decision on Application for Extension of Time to Appeal
Outcome
The plaintiff's application for an extension of time to appeal from the decision of Malpass AsJ on 13 June 2008 is refused.
Legal Topics
['extension of Time to Appeal' 'summary Dismissal' 'striking Out Pleadings' 'civil Procedure']
['practice and Procedure'] ['extension of Time to Appeal' 'summary Dismissal' 'striking Out Pleadings' 'civil Procedure']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application for Extension of Time to Appeal / Decision on Application for Extension of Time to Appeal

Legal Issues

  1. 1 ['Whether an extension of time should be granted to allow the plaintiff to appeal from a summary dismissal of claims under the Trade Practices Act, Fair Trading Act and Contracts Review Act.' 'Whether the conduct of the plaintiff in initially electing not to appeal and to replead affects the exercise of discretion to extend time for appeal.']

Ratio Decidendi

The plaintiff's deliberate decision not to appeal, but instead to pursue amendment of pleadings, and the subsequent change in strategy after court time had already been spent on that basis, meant that justice did not require an extension of time to appeal be granted. The overriding purpose of civil procedure to ensure the just, quick and cheap resolution of disputes also weighed against granting the extension. The plaintiff failed to demonstrate that refusal would result in relevant injustice to displace the defendants' vested right to retain judgment.

Court Disposition

The plaintiff's application for an extension of time to appeal from the decision of Malpass AsJ on 13 June 2008 is refused.

Orders

  • ["Plaintiff's application for extension of time dismissed" 'Court to hear parties on the question of costs']