Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Corry v NHB Enterprises Pty Ltd [2023] NSWCA 162 Hearing dates: 27 June 2023 Date of orders: 13 July 2023 Decision date: 13 July 2023 Before: Meagher JA at [1];
Leeming JA at [38];
White JA at [39]Decision: (1) Dismiss the first appellant Mr Corry’s Notice of Motion filed 17 March 2023 seeking the admission of Mr Borenstein’s report as evidence in the appeal.
(2) Dismiss the first appellant’s Amended Notice of Appeal filed 20 March 2023.
(3) Order the first appellant pay the respondents’ costs of the appeal, including the costs of that Motion.
(4) Dismiss the appeal made by Boriana Corry as second appellant in the Notice of Appeal filed 9 May 2022 with costs.
Catchwords: CONTEMPT – civil contempt – admission of further evidence on appeal – whether psychiatrist’s report should be admitted as evidence of appellant’s vulnerable mental health condition and his father’s occupation – appellant must demonstrate punishment orders are the result of legal, factual or discretionary error – where not contended that with the benefit of further evidence the primary judge must have made different punishment orders – application to admit further evidence refused because evidence not capable of establishing error – appeal dismissed
APPEALS – admission of further evidence – appeal by way of rehearing – appellant must demonstrate order the subject of appeal the result of legal, factual or discretionary error
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6
Supreme Court Act 1970 (NSW), ss 75A, 101(5)
Supreme Court Rules 1970 (NSW), Pt 55 r 13
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Construction, Forestry, Mining and Energy Unionv Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21
Corry v NHB Enterprises Pty Ltd [2022] NSWCA 280
Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340
Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15; [1987] HCA 56
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Ladd v Marshall [1954] 1 WLR 1489
McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70
Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277
Quilter v Mapleson (1882) 9 QBD 672
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- AGLC
- Corry v NHB Enterprises Pty Ltd [2023] NSWCA 162
- Case
- [2023] NSWCA 162
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the psychiatrist's report should be admitted as further evidence. This was framed within the broader question of whether the admission of such evidence would demonstrate that the punishment orders made by the primary judge were the result of legal, factual, or discretionary error. The court was required to determine if the appellant had met the threshold for admitting fresh evidence on appeal, which typically involves demonstrating that the new evidence is capable of establishing error in the original decision.
The Court of Appeal reasoned that for an appeal by way of rehearing, the appellant must demonstrate that the order under appeal was the result of legal, factual, or discretionary error. The court found that the appellant had not contended that, with the benefit of the proposed further evidence, the primary judge must have made different punishment orders. Consequently, the application to admit the psychiatrist's report was refused because the evidence was not capable of establishing error on the part of the primary judge. The appeal was therefore dismissed.
The Court of Appeal ordered that Mr Corry's Notice of Motion seeking the admission of the psychiatrist's report be dismissed. The first appellant's Amended Notice of Appeal was also dismissed, with an order that Mr Corry pay the respondents' costs of the appeal, including the costs of the motion. The appeal made by the second appellant, Boriana Corry, was also dismissed with costs.
Orders
Orders of the court
(1) Dismiss the first appellant Mr Corry’s Notice of Motion filed 17 March 2023 seeking the admission of Mr Borenstein’s report as evidence in the appeal.
(2) Dismiss the first appellant’s Amended Notice of Appeal filed 20 March 2023.
(3) Order the first appellant pay the respondents’ costs of the appeal, including the costs of that Motion.
(4) Dismiss the appeal made by Boriana Corry as second appellant in the Notice of Appeal filed 9 May 2022 with costs.
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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