Marks-Isaacs v Dive & Anor [2000] NSWSC 162

Marks-Isaacs v Dive & Anor [2000] NSWSC 162

Delay alone, absent a finding of lack of bona fides and where time has been extended, is insufficient to render the application for a stated case 'merely frivolous' under s 103 of the Justices Act. The magistrate erred in refusing to state a case solely due to delay.

Jurisdiction
Australia
Judgment Date
16 March 2000
Procedural Posture
Summons for Order to State a Case / Judgment on Application for Order to State a Case
Outcome
Order granted that the first defendant state a case; costs reserved; liberty to apply for costs on seven days notice.
Legal Topics
['order to State a Case' 'delay in Procedure' 'frivolous Application' 'accord and Satisfaction' 'default Judgment']
['administrative Law'] ['order to State a Case' 'delay in Procedure' 'frivolous Application' 'accord and Satisfaction' 'default Judgment']

Case Brief

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Procedural Posture

Summons for Order to State a Case / Judgment on Application for Order to State a Case

Legal Issues

  1. 1 ['Whether delay in filing draft stated case renders the application merely frivolous under s 103 of the Justices Act' 'Whether the magistrate erred in refusing to state a case solely on the ground of delay']

Ratio Decidendi

Delay alone, absent a finding of lack of bona fides and where time has been extended, is insufficient to render the application for a stated case 'merely frivolous' under s 103 of the Justices Act. The magistrate erred in refusing to state a case solely due to delay.

Court Disposition

Order granted that the first defendant state a case; costs reserved; liberty to apply for costs on seven days notice.

Orders

  • ['Order that the first defendant state a case in the matter of Australian and New Zealand Banking Group Limited v Simon E. Marks-Isaacs which was before the learned magistrate on 17 July 1998.' 'Costs of this summons are reserved.' 'Liberty to either party to apply for an order for costs on seven days notice.']