Vasile Nan v Andreas Van den Berg and ors [2004] NSWIRComm 361

Vasile Nan v Andreas Van den Berg and ors [2004] NSWIRComm 361

Leave to appeal was refused because the appellant sought, in substance, to re-open proceedings finally determined by Cahill VP after the 1997 orders had been entered and perfected, in circumstances where the appellant and his legal advisers had been on notice of Mrs Van den Berg's possible connection with the matter and no application to join her was made. No fraud, mistake, denial of hearing or other exceptional circumstance justified re-opening, and the appellant identified no requisite error in Peterson J's dismissal of the Notice of Motion.

Jurisdiction
Australia
Judgment Date
26 November 2004
Procedural Posture
Application for Leave to Appeal and Appeal Under Ss187 and 189 of the Industrial Relations Act 1996 / Full Bench of the Industrial Relations Commission of New South Wales in Court Session Determining Leave to Appeal From Peterson J's Dismissal of a Notice of Motion
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['leave to Appeal' 'joinder of Party After Judgment' 're Opening Perfected Orders' 'functus Officio' 'finality of Litigation' 'res Judicata' 'abuse of Process' 'enforcement of Judgment']
['industrial Relations' 'civil Procedure'] ['leave to Appeal' 'joinder of Party After Judgment' 're Opening Perfected Orders' 'functus Officio' 'finality of Litigation' 'res Judicata' 'abuse of Process' 'enforcement of Judgment']

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Procedural Posture

Application for Leave to Appeal and Appeal Under Ss187 and 189 of the Industrial Relations Act 1996 / Full Bench of the Industrial Relations Commission of New South Wales in Court Session Determining Leave to Appeal From Peterson J's Dismissal of a Notice of Motion

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s 188 of the Industrial Relations Act 1996.' 'Whether the Commission could amend orders made in 1997 to add Mrs Elfriede Van den Berg as a judgment debtor or join her to the original proceedings after the orders had been entered.' "Whether the appellant identified error in Peterson J's dismissal of the Notice of Motion." 'Whether the principles of finality of litigation, functus officio, res judicata or abuse of process prevented the relief sought.']

Ratio Decidendi

Leave to appeal was refused because the appellant sought, in substance, to re-open proceedings finally determined by Cahill VP after the 1997 orders had been entered and perfected, in circumstances where the appellant and his legal advisers had been on notice of Mrs Van den Berg's possible connection with the matter and no application to join her was made. No fraud, mistake, denial of hearing or other exceptional circumstance justified re-opening, and the appellant identified no requisite error in Peterson J's dismissal of the Notice of Motion.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.']