Trad v Harbour Radio Pty Ltd [2010] NSWCA 41

Tobias JA:

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 [2009] NSWCA 121, Beazley JA, sitting as the referrals judge, observed (at [15]) 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.”


Nominal Defendant v Stephens [2011] NSWCA 312

Whealy JA

82 The statutory provisions relevant to the issue of contributory negligence are section 138 of the Motor Accidents Compensation Act 1999 and section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 . There is no dispute that the primary judge recognised that the respondent’s damages recoverable in respect of the present motor accident were to be reduced by the percentage the court considered “just and equitable in the circumstances of the case”. The 1965 Act required that damages might be reduced “to such extent as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage”. Mr Rewell did not suggest that the primary judge had overlooked these provisions. Senior counsel also accepted that the authorities require that an appellant court be mindful of the need for restraint in disturbance of decisions about contributory negligence. As long ago as 1985, the High Court in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532 – 533 said:-

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.

83 Their Honours had preceded this comment with the observation that:-

A finding on a question of apportionment is a finding upon a “question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds”: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

The principle that intermediate and ultimate appellate courts must show restraint in reviewing a primary judge’s apportionment of contributory negligence remains steadfastly the position today (see Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J; Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA).

Nominal Defendant v Stephens [2011] NSWCA 312

Whealy JA:

70 There is no doubt that the primary judge was obliged to give reasons for the conclusions he reached. The extent and scope of a trial judge’s duty to give reasons depends, however, upon the circumstances of the individual case ( Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed). The critical question in the present matter is whether the reasons given by the primary judge were adequate ( Beale v Government Insurance Office of New South Wales(1997) 48 NSWLR 430 at 431 per Mason P; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 – 279 per McHugh JA). This question must be answered against the background of an important principle. This is that the proper administration of justice requires that reasons be given in a form, firstly, that will enable the losing party to understand the grounds upon which the case was lost, and secondly, that will not frustrate the losing party’s right of appeal ( Public Service Board of NSW v Osmond(1986) 159 CLR 656 at 666 – 667). However, it is, as always, necessary to read the primary judge’s decision fairly. It is important not to read passages in isolation. It is important not to read the decision selectively ( Dobler v Halverson (BHT Kenneth Halverson)[2007] NSWCA 335; 70 NSWLR 151 at [71] per Giles JA (with whom Ipp and Basten JJA agreed). This was a lengthy decision, so it is not appropriate, in my view, to seize on a sentence or two and suggest thereby that there has been a failure to give adequate reasons. In my opinion, when one has regard to the way in which the issues unfolded in the present matter; to the way in which they were argued at the conclusion of evidence, and to the detailed findings and analysis his Honour made, the complaints of the appellant cannot succeed. When regard is had to the decision as a whole, it is clear in my view that the asserted failures in the structure of the reasons have not been established.

Wang & Liu v State of New South Wales [2011] NSWCA 321


23. Appeals from the Supreme Court in a Division are against a “judgment or order” : s 101(1) Supreme Court Act 1970 . A ” judgment or order ” in this context means an operative judicial act, ie the formal judgment or order which when entered is binding on the parties and definitive of legal rights: Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; Lake v Lake [1955] P 336 at 343; Moller v Roy (1975) 132 CLR 622 at 625, 632, 639; Universal Tape Wholesalers Pty Ltd v AMP Fire and General Insurance Co Ltd (NSWCA, 8 March 1991, unreported); Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127; Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309 at [30], [39]; Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285-6. While error in a judgment or order might be demonstrated on an appeal by showing error in a judge’s reasons for judgment, the appeal is against the judgment or order, not the reasons for judgment: Driclad at 64; Lake v Lake at 344; Ah Toy at 286.

Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

McColl JA

156 The principles governing appellate review of a primary judge’s apportionment of culpability between two tortfeasors were explained in Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports ¶81-731:“45 Appellate review of a trial judge’s apportionment of liability as between respectively culpable parties, however, is governed by the stringent tests which limit appellate review of discretionary decisions.

46 In Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34, (1985) 59 ALJR 492 at 493 – 494 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in their joint judgment said: “[a] finding on the issue of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact, or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’ …such a finding, if made by a judge, is not lightly reviewed.

47 This Court has frequently reminded itself of the necessity to exercise restraint in reviewing a trial judge’s decision on apportionment. As Sheller JA (with whom Powell and Heydon JJA agreed) said in Mousa v Marsh [2001] NSWCA 317 at [12]:

“It is well established that since a court’s apportionment of the degree of liability due to the plaintiff’s contributory negligence is a question not of principle or of positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations all of which involve an individual choice or discretion as to which there may well be differences of opinion by different minds (see British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201), such a finding, if made by a judge, is not lightly reviewed.”

48 To set aside an apportionment of liability it must be shown that the failure to exercise the discretion involved in the apportionment exercise properly was unreasonable or plainly unjust: Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited (2001) 53 NSWLR 626 at 637 [60] per Stein JA with whom Davies A-JA agreed (655 at [189]). Fitzgerald A-JA was of the view that an appeal court was not entitled to interfere “if the trial judge’s apportionment was reasonably open.” (653 at [172]). Rolls Royce was appealed to the High Court as Amaca Pty Ltd v State of New South Wales [2003] HCA 44, (2003) 77 ALJR 1509. As Tobias JA (with whom Sheller and Foster AJA agreed) recently observed, the appeal was allowed on an issue which did not affect the correctness of Stein JA’s statement of principle: Rexstraw v Johnson [2003] NSWCA 287.”

Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309

Young JA (Giles JA agreeing):

42. As noted in the authorities collected as note s 66.45 in Ritchie’s Uniform Civil Procedure NSW , particularly Maxwell v Keun [1928] 1 KB 645 and Bloch v Bloch [1981] HCA 56; 180 CLR 390, 395, whilst it is seldom that an appellate court will feel justified in reviewing a decision to refuse an adjournment, the Court has power to review such an order and in certain circumstances it is its duty to do so. It will be its duty to do so if the order made below will defeat the rights of the parties altogether or even where, at least without fault, a vital witness ceases to become available such as happened in Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451, 461 (Full Federal Court). It is of little value to multiply examples.

43. As the Full Federal Court said in Petrovic at 460, it is not sufficient that the Court of Appeal considers that an adjournment should have been granted, the applicant must show that refusal of the adjournment produced, in the circumstances, an injustice. It must be remembered too, that the decision is a discretionary judgment.

44. “Injustice” is a coloured word with pejorative overtones. What is meant is that the refusal of the adjournment must not set up a situation where there is a likelihood that there cannot be a fair trial unless that factor is outweighed by prejudice to the opposing party.

Blacktown Workers’ Club Ltd v O’Shannessy [2011] NSWCA 265

Basten JA:

36 First, it may be accepted that the question whether a word in a statute is to be given its ordinary meaning or a technical or defined meaning is a question of law: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 395, referring to the first proposition in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Thus, if the magistrate gave the word a limited meaning in circumstances where, as a matter of law, it had a broader meaning, there would have been an error of law. However, as noted above, the definition in cl 6(7) does not, on its face, purport to exclude any object which would fall within the category of “walls”, in the ordinary sense of that word. Nor did the primary judge expressly explain how a structure which would be a wall in the ordinary sense, would not fall within the defined term. Further, and secondly, had she done so, she should have remitted the matter to the magistrate for him to determine whether or not the mesh screens fell within the ordinary meaning of the term “wall”. That is because the ordinary meaning of the word is a question of fact: Agfa-Gevaert at 395, second principle identified in Pozzolanic . The only circumstance in which it would have been appropriate for her Honour to determine the question would have been if only one answer were available. Her Honour did not so hold.

37 Thirdly, her own reasoning was erroneous. For the ordinary meaning, her Honour turned to definitions of “wall” in the Macquarie Dictionary and in the Oxford Dictionary . The value of a dictionary in providing common (and indeed uncommon) uses of words is undeniable; the pitfalls with respect to their use in statutory construction derive from their strengths. A common word may have a core meaning, but it may also be used analogically, figuratively, metaphorically and sometimes merely to raise illuminating associations. The danger was famously identified by Judge Learned Hand in Cabell v Markham (1945) 148 F.2d 737 at 739:

“But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

38 The importance of this approach, cited with approval in Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629 at [27], is reflected in the obligation to adopt a construction of a statute which would “promote the purpose or object underlying the Act”:Interpretation Act 1987 (NSW), s 33. As the Club submitted, walls have many purposes and effects; the Act is concerned with their effect in aggravating the exposure of both smokers and other persons to tobacco and other smoke where they operate to enclose a public place: s 3, Object of Act. That purpose must be borne steadfastly in mind in determining the meaning of the language in the statute, both generally and in relation to the word “wall”. Her Honour did not adopt that approach, as appears from the conclusion reached at [37]:

“The first-listed definition from the Macquarie Dictionary is relevant in the present case. Importantly, it defines a wall by reference to functions going beyond the prevention or inhibition of lateral airflow (i.e. enclosure, division, support, protection, etc). When this definition is adopted, it is clear that the mesh screens were, collectively or individually, a wall or walls. They were upright metal structures designed to divide or enclose the Western Terrace from the loading dock area.”

39 This approach, relying on the great variety of functions that can be served by a wall, fails to focus on the particular function served in respect of a public place having a ceiling or roof. By contrast, and assuming that one is only concerned with the language of the 2007 Regulation for present purposes, there is good reason to accept the submission of the Club that a structure or device which does not, in a discernable way, impede lateral airflow, is not a wall for the purposes of the Act.

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 180 ALR 1; 75 ALJR 1105


[82] It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia[50], if an administrative tribunal (like the Tribunal)

“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive[51]. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law[52].

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