Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Burton v Babb [2020] NSWCA 331 Hearing dates: 24 November 2020 Date of orders: 16 December 2020 Decision date: 16 December 2020 Before: Payne JA and Simpson AJA at [1]
Brereton JA at [63]Decision: 1. Leave to appeal against the orders:
a. that the State of New South Wales be joined as a party to the proceedings; and
b. that the first and second defendants be removed from the proceedings;
granted;
2. Appeal allowed in part;
3. The appeal against orders 1(a) and 1(b) above allowed;
4. Orders 1(a) and 1(b) set aside and in lieu thereof the State of NSW’s notice of motion of 7 August 2020 is dismissed with costs;
5. Leave to appeal against the dismissal of the applicant’s notice of motion of 27 July2020 refused;
6. No order as to the costs of the proceeding in this Court.
Catchwords: APPEALS — application for leave to appeal —interlocutory orders – issue of principle identified – application of rr 6.24, 6.29 UCPR – joinder and removal of parties – leave to appeal granted in respect of joinder of the State and removal of named defendants
CIVIL PROCEDURE — Parties — Joinder of defendant — whether necessary party – application by State of New South Wales to be joined as party to action in which the State admitted vicarious liability in relation to torts pleaded against defendants – no conclusion that State ought to have been joined by plaintiff as a party – held, not necessary for resolution of all matters for State to be joined
CIVIL PROCEDURE — Parties — Removal of parties – where primary judge ordered removal of two named defendants under r 6.29 UCPR after joinder of State – held, joinder of State did not mean that named defendants ceased to be necessary or proper parties
CIVIL PROCEDURE — Jury — Availability of jury trial — Interests of justice – where plaintiff alleged apprehended bias on the part of judicial officers – where first defendant is “well known in legal circles” and second defendant is “high profile” – held, no reasonable apprehension of bias – application for leave to appeal refused
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), s 7
Crown Proceedings Act 1988 (NSW), s 5(1)
Director of Public Prosecutions Act 1986 (NSW), ss 4, 35
District Court Act 1973 (NSW), s 76A
Employees Liability Act 1991 (NSW), s 3
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8, 10
Supreme Court Act 1970 (NSW) s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), rr 6.21, 6.24(1), 6.27, 6.29
Western Australia Marine Act 1982 (WA), s 124
Cases Cited: Atid Navigation Co Ltd v Fairplay Towage & Shipping Co Ltd [1955] 1 WLR 336; 1 All ER 698
Bell v State of Western Australia (2004) 28 WAR 555; [2004] WASCA 205
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- AGLC
- Burton v Babb [2020] NSWCA 331
- Case
- [2020] NSWCA 331
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the State of New South Wales ought to have been joined as a party to the proceedings, and whether the removal of the first and second defendants was appropriate. Additionally, the court considered whether there was a reasonable apprehension of bias on the part of judicial officers, which had led to an application for a jury trial. The court was required to determine the application of rules 6.24 and 6.29 of the Uniform Civil Procedure Rules (UCPR) regarding the joinder and removal of parties.
The Court of Appeal reasoned that while the State admitted vicarious liability for the torts pleaded against the defendants, it was not established that the State was a necessary party for the resolution of all matters in dispute. The joinder of the State did not, in itself, mean that the first and second defendants ceased to be necessary or proper parties to the action. Consequently, the court found that the primary judge erred in ordering the joinder of the State and the removal of the named defendants. Regarding the jury trial application, the court held that there was no reasonable apprehension of bias, and therefore refused leave to appeal on that issue.
The Court of Appeal granted leave to appeal against the orders concerning the joinder of the State and the removal of the first and second defendants. The appeal was allowed in part, with the orders for the joinder of the State and the removal of the first and second defendants being set aside. The State of New South Wales' notice of motion for joinder was dismissed. Leave to appeal against the dismissal of the applicant's notice of motion regarding the jury trial was refused. No order was made as to the costs of the proceeding in the Court of Appeal.
Orders
Orders of the court
1. Leave to appeal against the orders:
a. that the State of New South Wales be joined as a party to the proceedings; and
b. that the first and second defendants be removed from the proceedings;
granted;
2. Appeal allowed in part;
3. The appeal against orders 1(a) and 1(b) above allowed;
4. Orders 1(a) and 1(b) set aside and in lieu thereof the State of NSW’s notice of motion of 7 August 2020 is dismissed with costs;
5. Leave to appeal against the dismissal of the applicant’s notice of motion of 27 July2020 refused;
6. No order as to the costs of the proceeding in this Court.
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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