Aardvark Security Services Pty Limited v Ruszkowski

This case concerns an application for special leave to appeal to the High Court of Australia. The applicant, Aardvark Security Services Pty Limited, sought leave to appeal a decision of the Court of Appeal of New South Wales. The dispute arose from a workers' compensation claim where the employer sought to rely on a defence that the deceased's own fault, specifically speeding or driving without a light, was a complete defence to the claim. The employer attempted to prove these facts through witness testimony, including police officers who opined on the deceased's speed based on evidence such as marks on the roadway.

The central legal issue before the High Court was whether the trial judge's intervention in the proceedings below was so excessive as to prevent a fair trial, and whether an objection to such intervention was a necessary precondition for an appeal on that ground. The Court of Appeal had found that while some of the trial judge's questions were "unfortunate," the intervention was not of a nature that would warrant a new trial. The applicant argued that the trial judge's intervention, characterized by a significant number and type of questions, amounted to entering the arena and prejudiced the employer's ability to present its defence.

The applicant contended that the Court of Appeal erred in its assessment of the trial judge's intervention, particularly in the judgment of Justice Handley, who characterised certain factual matters as not germane to the issue. The applicant argued that these facts, such as the extent of damage to the deceased's cycle and whether its light was illuminated, were indeed relevant to establishing the deceased's fault. Furthermore, the applicant raised a point of law regarding a potential conflict between authorities concerning the necessity of objecting to judicial intervention to preserve an appeal ground, referencing English and New Zealand case law. The applicant argued that the Court of Appeal's finding that the intervention was not serious and therefore did not require correction was erroneous.