Carroll v Carroll [2008] NSWIRComm 103

Carroll v Carroll [2008] NSWIRComm 103

As the hearing had not commenced, the appellant did not require leave to discontinue. Despite opposition, the appellant’s wish not to pursue the appeal should be respected. The usual costs rule applies unless a successful application for a departure is made.

Jurisdiction
Australia
Judgment Date
23 May 2008
Procedural Posture
Appeal / Application for Leave to Appeal and Appeal; Notice of Discontinuance Filed Before Hearing
Outcome
Proceedings discontinued; usual order for costs announced subject to parties' submissions within 7 days.
Legal Topics
['appeal' 'discontinuance' 'costs' 'unrepresented Litigants']
['industrial Law'] ['appeal' 'discontinuance' 'costs' 'unrepresented Litigants']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal / Application for Leave to Appeal and Appeal; Notice of Discontinuance Filed Before Hearing

Legal Issues

  1. 1 ['Whether the appellant may discontinue the proceedings before the commencement of hearing without leave of the Court' 'Effect of discontinuance on costs']

Ratio Decidendi

As the hearing had not commenced, the appellant did not require leave to discontinue. Despite opposition, the appellant’s wish not to pursue the appeal should be respected. The usual costs rule applies unless a successful application for a departure is made.

Court Disposition

Proceedings discontinued; usual order for costs announced subject to parties' submissions within 7 days.

Orders

  • ['Proceedings are discontinued.' "Unless either party seeks a departure from the usual costs order within 7 days, Shane Carroll to pay Patrick Carroll's costs on party/party basis, as agreed or assessed." 'Any application for assessment of costs to be directed to the Registrar within 28 days unless liberty to seek...