Campbell v Hamilton

[2025] NSWCA 200

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Campbell v Hamilton [2025] NSWCA 200

Hearing dates:

26 August 2025

Decision date:

03 September 2025

Before:

Ward P; Mitchelmore JA; McHugh JA

Decision:

(1) The notices of motion filed by the applicant dated 25 February 2025 and 25 June 2025 are dismissed.

(2) The applicant is to pay the respondents’ costs of both notices of motion.

Catchwords:

CIVIL PROCEDURE — motion to set aside orders of Court of Appeal — whether orders made irregularly, unlawfully or in bad faith — procedural fairness — where judge put proposition of law to counsel — whether denial of opportunity to respond — no basis to set aside orders

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 63, 73

Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17, 36.18

Cases Cited:

Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Perpetual Trustees Australia Ltd v Heperu (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387

Category:

Principal judgment

Parties:

Robert Campbell (Applicant)
Colin Stewart Hamilton (First respondent)
Penney Louise Hamilton (Second respondent)
Registrar General (Third respondent)

Representation:

Counsel:
Robert Campbell (self-represented)
J Stephenson (First and second respondents)

Solicitors:
Elliot Tuthill Solicitors (First and second respondents)

File Number(s):

2018/00200753

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2018] NSWSC 806

Date of Decision:

4 June 2018

Before:

Slattery J

File Number(s):

2017/156313

JUDGMENT

1. THE COURT: By notice of motion filed on 25 February 2025, the applicant, Robert Campbell, seeks an order setting aside the judgment and orders of the Court of Appeal made on 25 February 2019, except for “clauses 58(2), 59 and 60 (order 2)”. The Court understands those clauses to correspond to numbered paragraphs in the Court of Appeal’s reasons for judgment in Campbell v Hamilton [2019] NSWCA 22; 19 BPR 39,181.

2. This is the second notice of motion that the applicant has filed seeking this relief. The first notice of motion was filed on 12 October 2020. A notice of discontinuance with respect to that motion was filed on 25 January 2021.

3. The applicant submitted that despite the lapse of time, his application should be considered as the judgment of the Court of Appeal’s 2019 judgment was “very apparently wrong” and could only be explained by a denial of procedural fairness on the part of White JA, who wrote the principal judgment (Beazley P and Gleeson JA agreeing). In support of the relief sought, he relied variously on ss 56, 63 and 73 of the Civil Procedure Act 2005 (NSW) and rules 36.15-36.18 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

4. The first and second respondents, Colin Hamilton and Penney Hamilton, oppose the relief sought. As the third respondent, the Registrar General, filed a submitting appearance, references to “the respondents” below are to the first and second respondents.

5. The notice of motion…