Bitar Pty Ltd v Hebbel Constructions Pty Ltd

Bitar Pty Ltd (the applicant) sought leave to appeal an interlocutory decision of the primary judge who had adopted reports from a referee. The dispute concerned the adoption of these referee reports, with the applicant arguing that it had not been afforded a proper opportunity to make submissions to the referee and that there was a manifest injustice in the primary judge not considering the factual questions anew. The respondent was Hebbel Constructions Pty Ltd. The appeal was heard by Gleeson and McCallum JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge erred in adopting the referee's reports without a fresh consideration of the factual findings, and whether the primary judge wrongly exercised their discretion in refusing to admit late material. The applicant contended that the primary judge should have considered the factual questions afresh, notwithstanding the referee's findings, and that the refusal to admit late material was an improper exercise of discretion.

The Court of Appeal held that the applicant had been afforded an opportunity to make submissions to the referee and had not done so. Furthermore, the Court found that the primary judge's decision to refuse the admission of late material was a proper exercise of discretion, having regard to unexplained delay and case management principles. The Court indicated that it would generally exercise restraint in reviewing discretionary decisions concerning questions of practice and procedure.

Consequently, the Court dismissed the summons seeking leave to appeal and ordered the applicant to pay the respondent's costs of the summons.