Wilkie v Brown (No 2) [2018] NSWCA 80

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wilkie v Brown (No 2) [2018] NSWCA 80 Hearing dates: 10 April 2018 Decision date: 18 April 2018 Before: McColl JA at [1]; Meagher JA at [1]; Ward JA at [1] Decision: 1. Refuse the application to extend time under UCPR, r 59.10(2). 2. Dismiss the summons filed on 16 November 2017 with costs. Catchwords: JUDGMENTS AND ORDERS – res judicata – interlocutory orders – Civil Procedure Act 2005 (NSW), s 91 – where order dismissing appeal proceeding because of appellant's non-appearance not subject to any terms preventing further proceedings and not including any determination on the merits – whether jurisdictional error or error of law on face of record in dismissing later appeal proceeding because existing order dismissing proceeding deprived court of jurisdiction

PRACTICE AND PROCEDURE – leave to commence judicial review proceeding outside three-month period under Uniform Civil Procedure Rules (NSW), r 59.10 – where applicant's ultimate interest in quashing orders dismissing appeal is in successfully prosecuting appeal from cost review panel's assessment of solicitor's costs – where no explanation of delay in District Court and Supreme Court, insufficient evidence to assess merits of underlying appeal, and disproportion between costs incurred and nominal amount of earlier legal costs in issue – whether applicant's interest in successfully prosecuting underlying appeal warrants incurring of further costs as between parties or in public interest – no question of principle Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3(1), 4(1), 91(1) District Court Act 1973 (NSW), s 127(1) Legal Profession Act 2004 (NSW), ss 382(1), 384, 385 Supreme Court Act 1970 (NSW), ss 48(1)(a)(iv), 48(2)(g), 69 Uniform Civil Procedure Rules 2005 (NSW), rr 12.10(b), 50.3, 59.10 Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Trust v Das [2012] NSWCA 164 Birkett v James [1978] AC 297 Huang v Attapallil [2017] NSWCA 181 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 State of New South Wales v Avery (2016) 92 NSWLR 141; [2016] NSWCA 147 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Texts Cited: KR Handley, Spencer-Bower and Handley: Res Judicata, (4th ed 2009, LexisNexis) Category: Principal judgment Parties: Sophia Wilkie (Applicant) Michael Neil Brown (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: W Carney (Applicant) In person (First Respondent)