Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Donnelly v Australia and New Zealand Banking Corporation [2015] NSWCA 233 Hearing dates: 3 August 2015 Decision date: 03 August 2015 Before: Beazley P Decision: 1. Notice of appeal dismissed as incompetent pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 51.41; 2. The appellant on the appeal (being the respondent on the notice of motion) pay the respondent on the appeal (the applicant on the notice of motion) costs of the notice of motion; 3. The appellant Ms Donnelly pay the respondent's costs relating to the notice of appeal on the ordinary basis; 4. The notice of motion is otherwise dismissed, with the effect that order 3 sought in that notice of motion is not granted. Catchwords: APPEAL – competency – UCPR, r 51.41 – whether summary dismissal of proceedings pursuant to UCPR, r 13.4 constitutes interlocutory judgment – Supreme Court Act 1970 (NSW) s 101(2)(e) – leave to appeal required Legislation Cited: Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: AB v State of New South Wales [2014] NSWCA 243 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Category: Principal judgment Parties: Fiona Marie-Therese Donnelly (Appellant) Australia and New Zealand Banking Corporation (Respondent) Representation: Counsel: J Foley (Appellant) K Ryan (Respondent) Solicitors: Gadens Lawyers (Respondent) File Number(s): 2015/183492 Decision under appeal Court or tribunal: Supreme Court Date of Decision: 13 May 2015 Before: Darke J File Number(s): 2015/109153 [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.] Judgment 1. HER HONOUR: On 13 May 2015, Darke J in the Equity Division ordered, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4 that proceedings commenced by the plaintiff, Ms Fiona Donnelly, on 13 April 2015, be dismissed. 2. By notice of appeal filed on 17 June 2015, Ms Donnelly sought to appeal against the whole of his Honour's decision. 3. The respondents, the Australia and New Zealand Banking Group Limited and ANZ Asia Limited, by notice of motion filed 15 July 2015 sought an order, being proposed order 1 in the notice of motion, that the notice of appeal filed by the appellant on 17 June 2015 be dismissed pursuant to UCPR, r 51.41 on the basis that the appeal is incompetent. Other orders were sought, to which I shall return. 4. In argument in support of proposed order 1 in the notice of motion, the respondents submitted that the decision of Darke J was interlocutory and therefore leave was required pursuant to the Supreme Court Act 1970 (NSW), s 101(2)(e). In the course of his submissions, Mr Foley also referred to the provision in s 101(2)(l), which provides that leave is required for: "A judgment or order of the Court in a Division on an application for summary judgment under the rules." 1. Mr Foley, the respondents' legal representative, informed the Court that on his understanding, there were judgments of this Court that indicated that s 101(2)(l) was directed to the dismissal of proceedings under UCPR, r 13.1. Accordingly he relied upon the decision of Leeming JA in AB v State of New South Wales [2014] NSWCA 243 in which his Honour accepted earlier authority in this Court of Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 to the effect that notwithstanding that the dismissal of proceedings under UCPR, r 13.4 could effect a final dismissal of the proceedings, such an order was nonetheless interlocutory. 2. For my own part, I do not share Mr Foley's reticence about reliance upon s 101(2)(l), but nonetheless in the absence of full argument on that point it is sufficient for the purposes of this application to rely upon the authority in Macatangay and to the decision of Leeming JA in AB v State of New South Wales that an order made under UCPR, r 13.4 is interlocutory. 3. Accordingly, leave to appeal is required and the notice of appeal filed on 17 June 2015 should be struck out. 4. The notice of motion also sought an order that counsel for Ms Donnelly, Mr Kevin Ryan, personally indemnify the respondents for the costs payable in relation to the notice of appeal, on the basis that those costs had been incurred improperly or without reasonable cause, in circumstances for which Mr Ryan was responsible. No affidavit evidence was filed in support of that proposed order. In those circumstances, although Mr Foley indicated that the evidence that would support an order of that kind was before Darke J, that material was not before this Court and was not served on Ms Donnelly or Mr Ryan in support of the order sought in the notice of motion. 5. I do not consider it appropriate, therefore, in the circumstances to further consider that proposed order. In any event, as I understood Mr Foley, he did not press the making of that order today. Rather, he sought that that part of the notice of motion be stood over to be heard with the summons for leave to appeal, which has subsequently been filed by Ms Donnelly, in respect of Darke J's judgment. 6. The difficulty with that proposal is that the order sought in the notice of motion, in its terms, is referrable to the notice of appeal and Ms Donnelly has not been on notice of the evidence to be advanced in support of that part of the notice of motion. Nor, by its terms, does the order sought refer to the summons for leave to appeal. 7. Accordingly, whilst I would make order 1 in the notice of motion, I would dismiss order 3. 8. There is a question as to what should happen as to the costs relating to the notice of appeal and the costs of today's notice of motion. In circumstances where the applicants on the motion were not aware until this morning that a summons for leave to appeal had been filed, I consider it was appropriate for them to proceed with their notice of motion. The costs of the hearing of the motion had, in effect, been incurred by them. Subject to hearing from Mr Ryan, I would propose that the applicants on the notice of motion have their costs of the notice of motion. 9. There is also the question of the costs on the notice of appeal. Again, I see no reason why the applicants on the notice of motion ought not to have the costs incurred to date on the notice of appeal, although the only steps which seem to have been taken in respect of it is to seek to have it struck out as incompetent. But again, I will hear Mr Ryan on that and if it is intended to continue to seek any such order on an indemnity basis I will have to hear further on that as well. [DISCUSSION] 1. HER HONOUR: I make the following orders in the matter including in respect of costs: 1. Notice of appeal dismissed as incompetent pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 51.41; 2. The appellant on the appeal (being the respondent on the notice of motion) pay the respondent on the appeal (the applicant on the notice of motion) costs of the notice of motion; 3. The appellant Ms Donnelly pay the respondent's costs relating to the notice of appeal on the ordinary basis; 4. The notice of motion is otherwise dismissed, with the effect that order 3 sought in that notice of motion is not granted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2015