AB v State of New South Wales [2014] NSWCA 243

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: AB v State of New South Wales [2014] NSWCA 243 Hearing dates: 21 July 2014 Decision date: 22 July 2014 Before: Leeming JA Decision: The appeal be dismissed as incompetent. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - competency - appeal brought purportedly as of right from summary dismissal of proceedings - Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 not followed - appeal dismissed as incompetent

COSTS - objection to competency brought after 28 day period in UCPR r 51.41 - costs of objection to competency governed by that regime - prejudice to appellant by reason of delay - no order as to costs Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Interpretation Act 1987 (NSW). s 33 Supreme Court Act 1935 (WA) Supreme Court Act 1970 (NSW), s 46(1)(b) Uniform Civil Procedure Rules (NSW) 2005, rr 13.4, 42.1, 51.37, 51.41, 51.47 Cases Cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 Eberstaller v Poulos [2014] NSWCA 211 Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Glendinning v Cuzeus [2009] WASCA 21 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Minogue v Williams [2000] FCA 125 R v XY [2013] NSWCCA 121; 84 NSWLR 363 State of NSW v Kable [2013] HCA 26 Wilson v Official Trustee in Bankruptcy [2000] FCA 304 Texts Cited: MJ Beazley, PT Vout and SE Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand, LexisNexis Butterworths, 2014 Category: Interlocutory applications Parties: AB (Appellant/Respondent on the Motion) State of New South Wales (1st Respondent/Applicant on the motion) The School (2nd Respondent) Representation: Counsel: In person (Appellant) M Allars SC (1st Respondent) Solicitors: NSW Crown Solicitor (1st Respondent) File Number(s): 2014/57590 Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the names of the appellant and 2nd Respondent have been suppressed Decision under appeal Citation: [2014] NSWSC 81 Date of Decision: 2014-02-21 00:00:00 Before: Garling J File Number(s): 2012/384382