Macatangay v State of New South Wales (No 2) [2009] NSWCA 272

Macatangay v State of New South Wales (No 2) [2009] NSWCA 272

Grove J's summary dismissal order under UCPR r 13.4 was interlocutory and required leave to appeal, so the applicant's appeal as of right was incompetent and should be struck out. The Registrar had power to strike out the appeal as incompetent. Although the renewed leave application was competent, leave should be...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 September 2009
Procedural Posture
Appeal and Application for Leave to Appeal From Summary Dismissal of Negligence Action / Court of Appeal Determination of Notice of Motion to Dismiss Appeal as Incompetent and Renewed Summons for Leave to Appeal
Outcome
Appeal struck out as incompetent; leave to appeal refused; applicant ordered to pay the State's costs of the appeal, the motions of 18 and 22 June 2009, and the summons of 16 July 2009 without disturbing existing costs orders.
Legal Topics
['summary Dismissal' 'frivolous and Vexatious Proceedings' 'interlocutory Orders' 'leave to Appeal' 'incompetent Appeal' "registrar's Powers" 'industrial Relations Commission Settlement' 'res Judicata Estoppel' 'unfair Dismissal']
['appeals' 'civil Procedure' 'industrial Law' 'tort'] ['summary Dismissal' 'frivolous and Vexatious Proceedings' 'interlocutory Orders' 'leave to Appeal' 'incompetent Appeal' "registrar's Powers" 'industrial Relations Commission Settlement' 'res Judicata Estoppel' 'unfair Dismissal']

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Procedural Posture

Appeal and Application for Leave to Appeal From Summary Dismissal of Negligence Action / Court of Appeal Determination of Notice of Motion to Dismiss Appeal as Incompetent and Renewed Summons for Leave to Appeal

Legal Issues

  1. 1 ["Whether the appeal as of right from Grove J's summary dismissal order was competent." 'Whether the Registrar had power to strike out the appeal as incompetent.' 'Whether a renewed application for leave to appeal was competent after an earlier refusal of leave.' "Whether leave to appeal from Grove J's decision should be granted." 'Whether Grove J erred in summarily dismissing the action on the basis that it sought to relitigate issues finalised by settlement of the unfair dismissal proceedings and decisions of the Industrial Relations Commission.']

Ratio Decidendi

Grove J's summary dismissal order under UCPR r 13.4 was interlocutory and required leave to appeal, so the applicant's appeal as of right was incompetent and should be struck out. The Registrar had power to strike out the appeal as incompetent. Although the renewed leave application was competent, leave should be refused because the applicant raised no solid new material or new argument justifying departure from the earlier refusal of leave, and her tort claim was based on loss of a teaching career she had given up in a binding settlement of Industrial Relations Commission proceedings that created an estoppel.

Court Disposition

Appeal struck out as incompetent; leave to appeal refused; applicant ordered to pay the State's costs of the appeal, the motions of 18 and 22 June 2009, and the summons of 16 July 2009 without disturbing existing costs orders.

Orders

  • ['Appeal struck out as incompetent.' 'Leave to appeal refused.' 'The applicant Miguela Macatangay to pay the costs of the State of the appeal, the motions of 18 and 22 June 2009, and the summons of 16 July 2009 but without disturbing any existing orders for costs.']