Van Gorp v Davy [2017] NSWCA 167

Van Gorp v Davy [2017] NSWCA 167

Leave to appeal was refused because the applicant did not demonstrate any error of principle, matter of public importance, or substantial injustice in the primary judge's discretionary decision to proceed under UCPR r 29.7 and dismiss the summons when the applicant failed to appear and gave no explanation at the time, particularly given the applicant's knowledge of the hearing date, failure to respond to attempts to contact him, failure promptly to inform the Court of his alleged illness, lack of supporting medical evidence, and the availability of an application under UCPR r 36.16(2)(b).

Jurisdiction
Australia
Judgment Date
06 July 2017
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Dismissal of Supreme Court Summons Seeking Leave to Appeal From Local Court Decisions
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['leave to Appeal' 'non Appearance at Hearing' 'dismissal for Want of Evidence' 'discretionary Decision' 'setting Aside Orders Made in Absence' 'consent Orders' 'interlocutory Judgment']
['civil Procedure' 'appeals'] ['leave to Appeal' 'non Appearance at Hearing' 'dismissal for Want of Evidence' 'discretionary Decision' 'setting Aside Orders Made in Absence' 'consent Orders' 'interlocutory Judgment']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Dismissal of Supreme Court Summons Seeking Leave to Appeal From Local Court Decisions

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Supreme Court's dismissal of the applicant's summons when he failed to appear at the hearing." 'Whether the primary judge erred in exercising discretion under UCPR r 29.7 to proceed and dismiss the summons rather than adjourn it.' "Whether the applicant's alleged illness, not communicated to the primary judge on the hearing day, established substantial injustice or an arguable miscarriage of discretion." 'Whether the availability of an application to set aside the judgment under UCPR r 36.16(2)(b) affected the grant of leave.']

Ratio Decidendi

Leave to appeal was refused because the applicant did not demonstrate any error of principle, matter of public importance, or substantial injustice in the primary judge's discretionary decision to proceed under UCPR r 29.7 and dismiss the summons when the applicant failed to appear and gave no explanation at the time, particularly given the applicant's knowledge of the hearing date, failure to respond to attempts to contact him, failure promptly to inform the Court of his alleged illness, lack of supporting medical evidence, and the availability of an application under UCPR r 36.16(2)(b).

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Application for leave to appeal refused with costs.']