Court of Appeal
New South Wales
Case Title: Ball v McInerney Medium Neutral Citation: [2014] NSWCA 331 Hearing Date(s): 15 July 2014 Decision Date: 19 September 2014 Before: Beazley P at [1];
Emmett JA at [2];
Gleeson JA at [5]Decision: (1) Grant leave to the appellants to amend the notice of appeal to add an additional ground of appeal concerning insufficiency of reasons.
(2) Direct the appellants to file an amended notice of appeal within 7 days.
(3) Appeal dismissed.
(4) Appellants to pay the respondent's costs.
[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.]
Catchwords: APPEAL - Grounds - Failure to give adequate reasons - Whether reasons given failed to reach minimum acceptable level to constitute a proper exercise of judicial power
APPEAL AND NEW TRIAL - Appeal - Interference with primary judge's findings of fact - Where findings are based on assessment of credit - Due weight to be given to the trial judge's advantage of seeing the witnesses give oral evidence -Principles in Fox v Percy apply - Whether primary judge's findings were inconsistent with incontrovertible facts or uncontested testimony, or were glaringly improbable or contrary to compelling inferences
JUDICIAL REVIEW - Grounds of review - Procedural fairness - Bias - Apprehended bias - Whether primary judge impermissibly and excessively interfered with the appellants' cross-examination - Whether primary judge's conduct as a whole indicated apprehended bias - Where a party fails to object at trial - Waiver of objection
JUDICIAL REVIEW - Grounds of review - Procedural fairness - Where appellant seeks a new trial - Whether some substantial wrong or miscarriage has been occasioned - Whether primary judge erred in permitting respondent to rely on an issue not pleaded in the defence - Where issue has been particularised in a Scott Schedule prior to trialLegislation Cited: Supreme Court Act 1970 (NSW) s 75A
Uniform Civil Procedure Rules 2005 (NSW) r 14.14, 15.2, 15.9, 51.53Cases Cited: Adamson v Ede [2009] NSWCA 379
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Fox v Percy [2003] HCA 22; 214 CLR 118
Galea v Galea (1990) 19 NSWLR 264
John Samuel Ball & Anor v Martin McInerney t/as Wildthorn Landscapes (District Court of New South Wales, Balla DCJ, 3 May 2013, unreported)
Keith v Gal [2013] NSWCA 339
Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427
Mifsud v Campbell (1991) 21 NSWLR 725
Nakhl Nasr v State of New South Wales [2007] NSWCA 101
Rajski v Bainton…
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- AGLC
- Ball v McInerney [2014] NSWCA 331
- Case
- [2014] NSWCA 331
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether the primary judge's reasons for judgment failed to reach the minimum acceptable level to constitute a proper exercise of judicial power, and whether the primary judge's findings of fact, particularly those based on an assessment of witness credit, were demonstrably wrong. The court also considered whether the primary judge's conduct during cross-examination indicated an apprehended bias, and whether any such bias, or the primary judge's permitting reliance on an unpleaded issue (which had been particularised in a Scott Schedule), constituted a substantial wrong or miscarriage of justice.
The Court of Appeal applied the principles established in *Fox v Percy*, emphasising the due weight to be given to a trial judge's advantage in assessing witness credit. The court found that the primary judge's findings were not inconsistent with incontrovertible facts or uncontested testimony, nor were they glaringly improbable or contrary to compelling inferences. Regarding the alleged apprehended bias, the court noted that the appellants had failed to object at trial, suggesting a waiver of that objection. The court also determined that the reliance on the unpleaded issue, having been particularised in a Scott Schedule, did not occasion a substantial wrong or miscarriage.
Leave was granted to the appellants to amend their notice of appeal to include a ground concerning the insufficiency of reasons. However, the appeal was ultimately dismissed, and the appellants were ordered to pay the respondent's costs.
Orders
Orders of the court
(1) Grant leave to the appellants to amend the notice of appeal to add an additional ground of appeal concerning insufficiency of reasons.
(2) Direct the appellants to file an amended notice of appeal within 7 days.
(3) Appeal dismissed.
(4) Appellants to pay the respondent's costs.
[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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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