Burton v Babb

The proceeding before Payne and Brereton JJA, and Simpson AJA concerned an application for leave to appeal against interlocutory orders made in the primary proceedings. The dispute involved the joinder of the State of New South Wales as a party and the removal of two named defendants from the action. The applicant sought leave to appeal against these orders, as well as the dismissal of their own notice of motion concerning the availability of a jury trial.

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.