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46 The relevant principles applicable to a stay application were referred to by this Court (Kirby P, Hope and McHugh JJA) in Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 at 693-695. Particular reliance was placed by the defendant upon the following passage from the joint judgment at 695:
“Secondly, although courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment.”
47 In Chen v Lym International; Chen v Marcolongo  NSWCA 121, Beazley JA, sitting as the referrals judge, observed (at ) that the comment by the Court in the passage which I have recorded above, indicates that there is no necessary requirement that the Court determine whether there is an arguable case on the appeal although it may be relevant in determining whether it is appropriate to grant a stay. Her Honour then remarked:
“In the present climate, where legal practitioners have a statutory obligation not to bring proceedings that do not have reasonable prospects of success: the Legal Profession Act 2004, s 347, this particular consideration may be one that the courts can approach with less scrutiny. It will depend upon the circumstances of the particular case. The court will always be concerned to ensure that its processes are not used inappropriately, for example, by permitting a defendant from keeping a successful plaintiff out of the fruits of his/her litigation victory by seeking a stay in respect of a hopeless appeal. … The primary consideration in the court’s determination will be whether the applicant for the stay has discharged the onus of demonstrating that there is a proper basis for the stay.”
7 The next part of Mr Burn’s report, repeated in the amended report, was headed “4.0 Standards and Statutes”. The Council objected to this section of the report. In it Mr Burn referred to an insurance audit undertaken by insurance brokers, Statewide Mutual, of public liability claims received against local government and to a best practice manual prepared in 1997 as an outcome of this work for use by local government “to proactively manage their public liability risk exposure”. Mr Burn said that this guideline was useful in assessing the severity of hazards identified on the footway. Based on this, Mr Burn said that it could be seen that the identified trip step where the plaintiff suffered her misadventure would qualify for a “high risk hazard rating”. There followed reference to a table from the manual recommending an intervention regime for identified hazards, which suggested that the Council should have responded to the high-risk hazard by effecting repairs within 24 hours. This insurance publication was neither a standard nor a statute and was published in 1997 by insurers to reduce their public liability risk exposure. The manual was published before the decisions of the High Court in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512. Partly because of its source and partly because of its nature, I do not believe that this material could be of any assistance in determining the issues in these proceedings.
8 The standards and statutes part of Mr Burn’s report went on to refer to the Guide Traffic Engineering Practice Part 13 Pedestrians, Austroads/Standards Australia 1995, which pointed out that it was important for many people that surfaces, presumably across which they have to move, should be flat and that this was particularly so for disabled people. The point was made that small ridges and protrusions as low as 6 mm can cause such people to stumble and fall. The guide continued: “Surfaces should not deviate more than 5 mm from a 500 mm long straight-edge layed [sic] anywhere on the surface.” Mr Burn observed that the trip hazard at the site of the plaintiff’s misadventure was more than 5 mm so would be considered a hazard under the guide. I can only say that the suggestion, if there was one, that Councils be universally required to meet that standard on all footpaths under their control is unreal. Again this part of the report is of no value in these proceedings.
9 Under the heading “Foreseeability” Mr Burn said:
“Based on the risk analysis undertaken by Statewide Mutual during the preparation of the best practice manual, and based on the information in the Traffic Engineering Guidelines: part 13 Pedestrians, the trip hazard present on the footpath in Ryde Road Gladesville outside no. 173 is an obvious hazard.”
10 I do not understand why reference to an insurance risk management manual or a standard directed particularly to disabled persons should be considered to replace what a mere glance at the photographs in evidence and the application of commonsense would demonstrate, namely that a 20 mm difference in level between two adjoining concrete slabs making up a footpath is a hazard and an obvious one. But that conclusion hardly advanced the plaintiff’s case if account is taken of what Gaudron, McHugh and Gummow JJ said in Brodie/Ghantous at 581:
“The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is of the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes.”
50 The respondent also relied upon the reference in the manual to the first of what was there referred to as the three basic control measures generally implemented by councils, namely, to make the area safe by the erection of temporary barriers or barricades. As I have already noted, the appellant had not adopted these guidelines at the time of the accident. In my opinion, notwithstanding that the relevant council officers were aware of this document, its existence did not of itself require the appellant to comply with the relevant guideline if the law did not otherwise require it to do so.
19. There are strong textual reasons supporting Basten JA’s doubts and indicating that the conclusion is not merely to be doubted, but is wrong. Section 69 is in Pt 3.2 of the Act. Sections 76–79 are in Pt 3.3. Section 56(1) contemplates that relevant, ie otherwise admissible, evidence may be excluded by more than one exclusionary rule in Pts 3.2–3.11. One exclusionary rule is the hearsay rule. If evidence satisfies s 69, then by s 69(2) the hearsay rule does not apply. But s 69(2) does not provide that the evidence is admissible. It is only admissible if no other exclusionary rule applies. Section 76 excludes “[e]vidence of an opinion” – not “evidence by a witness of an opinion”. There is no indication in any other provision in Pt 3.3 that it operates only in relation to the opinions of witnesses.
31 Further, whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law: Vetter v Lake Macquarie City Council  HCA 12; (2001) 202 CLR 439 (at  – ) and see generally OV and OW v Members of the Board of Wesley Mission Council  NSWCA 155; (2010) 270 ALR 542 (at  – ) per Allsop P; (at  – ) per Basten JA and Handley AJA. Questions of law are matters for the judge: Gatley (at [36.2]).
49 One of the cardinal principles of the adversarial system of justice is that a judge tries the case before him or her on the evidence and arguments presented in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. This principle reflects a central element in the system of justice administered by Australian courts, that is that it should be fair, meaning that it must be open, impartial and even-handed: Re JRL; Ex parte CJL  HCA 39; (1986) 161 CLR 342 (at 350) per Mason J; see also Gipp v R  HCA 21; (1998) 194 CLR 106 (at ) per McHugh and Hayne JJ. It is not the role of a judge to create a controversy: Sharp v Rangott  FCAFC 45; (2008) 167 FCR 225 (at ) per Besanko J.
46Prima facie, a grant of power to a court (including the conferral of jurisdiction) should not be construed as subject to a limitation not appearing in the words of that grant. Rather it should be construed in accordance with ordinary principles and the words used given their full meaning unless there is something to indicate to the contrary. It is inherent in the conferral of such a power that it must be exercised judicially and in accordance with legal principle, thus warranting “the most liberal construction” of the power because such a requirement would exclude the possibility that the power might be exercised “arbitrarily or capriciously or to work oppression or abuse”: Knight v FP Special Assets Ltd  HCA 28; (1992) 174 CLR 178 (at 205) per Gaudron J; see also (at 190 – 192) per Mason CJ and Deane J; Patton v Buchanan Borehole Collieries Pty Ltd  HCA 23; (1993) 178 CLR 14 (at 17) per Mason CJ, Deane and Dawson JJ; (at 27 – 29) per McHugh J. In language reminiscent of Dixon J’s statement in Water Conservation & Irrigation Commission (NSW) v Browning , Gaudron J has said that a broad judicial discretion is properly confined by identification of the matters which are extraneous to the power and the exposition of those which are relevant to the power and the way in which they bear on its exercise: Patton v Buchanan Borehole Collieries Pty Ltd (at 23).
47Nothing in the decisions referred to in the previous paragraph means that a conferral of jurisdiction and power is “totally uncontrolled simply because the repository of the power [is] a court”: PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service  HCA 36; (1995) 184 CLR 301 (at 313) per Brennan CJ, Gaudron and McHugh JJ; Pelechowski v Registrar, Court of Appeal (NSW)  HCA 19; (1999) 198 CLR 435 (at ) per Gaudron, Gummow and Callinan JJ; Ascot Investments Pty Ltd v Harper  HCA 1; (1981) 148 CLR 337 (at 354) per Gibbs J (Stephen J agreeing). It is “[t]he words of the grant [which] chart the ultimate boundaries of the power”: Gerlach v Clifton Bricks Pty Ltd  HCA 22; (2002) 209 CLR 478 (at ) per Kirby and Callinan JJ. There may be occasions when it is appropriate to approach the question of the proper meaning of the grant of power on the basis that only the clearest express intention can displace fundamental legal principle or basic policy consideration: FAI General Insurance Co Ltd v Southern Cross Exploration NL  HCA 13; (1988) 165 CLR 268 (at 290) p er Gaudron J.
5 Section 9 of the Interpretation Act 1987 should be noted. It provides that, except in so far as the contrary intention appears (s 6) in an Act or instrument “the word ‘may’, if used to confer a power, indicates that the power may be exercised or not, at discretion”.
94 In my opinion s 21 of the 2005 Act does not confer a power on the court to act of its own motion to dispense with a jury. Such a power cannot be found in the mere conferral of the power upon the court without an explicit reference to an application for dispensation. Discretionary powers are frequently conferred on courts in language such as “unless the court otherwise orders” (s 21(1)) or “a court may” (s 21(3)), but they do not indicate an intention to confer a power to be exercised by the court of its own motion but, rather, upon proper application: cf Dashwood v Maslin  HCA 62; (1909) 9 CLR 451 (at 459 – 460) per Barton J; Macdougall v Paterson(supra).