Boensch v Transport for NSW - [2024] NSWCA 86

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Boensch v Transport for NSW [2024] NSWCA 86
Hearing dates: 17 April 2024
Date of orders: 17 April 2024
Decision date: 17 April 2024
Before: Leeming JA
Decision:
1. Dismiss Transport for NSW’s notice of motion filed 15 March 2024, with costs.
2. Dismiss Mr Boensch’s notice of motion dated 27 March 2024, with costs.
3. Grant leave to Mr Boensch to file and serve a further amended notice of appeal in accordance with the document at pages 15-17 of tab 10 of the Court Book, but excluding orders 12, 13 and 14 of the orders sought on page 5.
4. Liberty to the parties to apply by email to the Associate of Leeming JA within 1 working day’s notice.

Catchwords:
PRACTICE – summary dismissal – notice of intention to appeal and notice of appeal filed late – whether appeal should be dismissed on basis of delay and insufficiency of prospects – delay minor – difficulty in assessing prospects in absence of appeal books and respondents’ submissions – lack of utility in determining questions of law in light of right of review – application for summary dismissal refused
PRACTICE – security for costs – respondents in breach of procedural directions – application brought late – appeal to be heard in five business days – majority of costs the subject of the application already incurred - significance of delay – application for security for costs dismissed

Legislation Cited:
Coastal Management Act 2016 (NSW), s 28
Coastal Protection Act 1979 (NSW), s 55N
Encroachment of Buildings Act 1922 (NSW)
Land and Environment Court Act 1979 (NSW), s 57
Real Property Act 1900 (NSW), ss 135B, 135D, 135J, Pt 14A
Supreme Court Act 1970 (NSW), s 46
Uniform Civil Procedure Rules 2005 (NSW), rr 1.11, 42.1, 51.8

Cases Cited:
Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
M & W Zaki Pty Ltd v MindChamps Preschool Ltd [2022] NSWCA 140
Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37; [2011] HCA 54
Skates v Hills Industries Ltd [2021] NSWCA 142
Stankovic v Peter Magee T/as Armstrong Legal [2014] NSWCA 191

Category: Procedural rulings
Parties: Franz Boensch (Appellant)
Transport for NSW (First Respondent)
Registrar General for New South Wales (Second Respondent)
Representation:
Counsel:
Mr Boensch in person
A Shearer (Transport for NSW) (First Respondent)
V Jeavons (Registrar General) (Second Respondent)
Solicitors:
Holding Redlich (Transport for NSW)
Office of the Registrar General

File Number(s): 2023/00276701
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 3

Citation:

[2023] NSWLEC 82

Date of Decision:

28 July 2023

Before:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCA 86
Decision Date: 17 April 2024

CaseChat Overview and Summary

Transport for NSW (the respondents) sought summary dismissal of an appeal by Mr Boensch (the appellant) on the grounds of delay in filing the notice of intention to appeal and the notice of appeal, and the alleged insufficiency of the prospects of success. The respondents also sought security for costs, alleging Mr Boensch was in breach of procedural directions.

The Court was required to determine whether the appeal should be summarily dismissed due to the late filing of appeal documents and the perceived lack of merit. Additionally, the Court had to consider whether to grant security for costs, taking into account the respondents' alleged breaches of procedural directions and the timing of their application.

Leeming JA refused the application for summary dismissal, noting that the delay was minor and that assessing the prospects of appeal was difficult without the appeal books and the respondents' submissions. His Honour also observed that the utility of determining the questions of law was diminished by the existence of a right of review. The application for security for costs was also dismissed, with Leeming JA highlighting the significance of the delay in bringing the application, the fact that the appeal was scheduled to be heard imminently, and that the majority of the costs in question had already been incurred. The Court ordered that Transport for NSW's notice of motion be dismissed with costs, and Mr Boensch's notice of motion be dismissed with costs. Mr Boensch was granted leave to file and serve a further amended notice of appeal, with specific exclusions.

Orders

Orders of the court

1. Dismiss Transport for NSW’s notice of motion filed 15 March 2024, with costs.

2. Dismiss Mr Boensch’s notice of motion dated 27 March 2024, with costs.

3. Grant leave to Mr Boensch to file and serve a further amended notice of appeal in accordance with the document at pages 15-17 of tab 10 of the Court Book, but excluding orders 12, 13 and 14 of the orders sought on page 5.

4. Liberty to the parties to apply by email to the Associate of Leeming JA within 1 working day’s notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Boensch v Transport for NSW [2024] NSWCA 86
Hearing dates:	17 April 2024
Date of orders:	17 April 2024
Decision date:	17 April 2024
Before:	Leeming JA
Decision:	1. Dismiss Transport for NSW’s notice of motion filed 15 March 2024, with costs. 2. Dismiss Mr Boensch’s notice of motion dated 27 March 2024, with costs. 3. Grant leave to Mr Boensch to file and serve a further amended notice of appeal in accordance with the document at pages 15-17 of tab 10 of the Court Book, but excluding orders 12, 13 and 14 of the orders sought on page 5. 4. Liberty to the parties to apply by email to the Associate of Leeming JA within 1 working day’s notice.
Catchwords:	PRACTICE – summary dismissal – notice of intention to appeal and notice of appeal filed late – whether appeal should be dismissed on basis of delay and insufficiency of prospects – delay minor – difficulty in assessing prospects in absence of appeal books and respondents’ submissions – lack of utility in determining questions of law in light of right of review – application for summary dismissal refused PRACTICE – security for costs – respondents in breach of procedural directions – application brought late – appeal to be heard in five business days – majority of costs the subject of the application already incurred - significance of delay – application for security for costs dismissed
Legislation Cited:	Coastal Management Act 2016 (NSW), s 28 Coastal Protection Act 1979 (NSW), s 55N Encroachment of Buildings Act 1922 (NSW) Land and Environment Court Act 1979 (NSW), s 57 Real Property Act 1900 (NSW), ss 135B, 135D, 135J, Pt 14A Supreme Court Act 1970 (NSW), s 46 Uniform Civil Procedure Rules 2005 (NSW), rr 1.11, 42.1, 51.8
Cases Cited:	Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 M & W Zaki Pty Ltd v MindChamps Preschool Ltd [2022] NSWCA 140 Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37; [2011] HCA 54 Skates v Hills Industries Ltd [2021] NSWCA 142 Stankovic v Peter Magee T/as Armstrong Legal [2014] NSWCA 191
Category:	Procedural rulings
Parties:	Franz Boensch (Appellant) Transport for NSW (First Respondent) Registrar General for New South Wales (Second Respondent)
Representation:	Counsel: Mr Boensch in person A Shearer (Transport for NSW) (First Respondent) V Jeavons (Registrar General) (Second Respondent) Solicitors: Holding Redlich (Transport for NSW) Office of the Registrar General
File Number(s):	2023/00276701
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 3 Citation: [2023] NSWLEC 82 Date of Decision: 28 July 2023 Before: