Boensch v Transport for NSW

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.