Dibb v Transport for New South Wales (No 2)

The applicants, Mr. and Mrs. Dibb, sought to set aside a judgment of the Court of Appeal of New South Wales, which had previously dismissed their appeal against a decision of the Supreme Court. The respondents were Transport for New South Wales. The core of the dispute revolved around whether the Court of Appeal had the power to set aside its own earlier judgment under rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).

The primary legal issue before the Court of Appeal was whether it possessed the inherent jurisdiction or statutory power to set aside its own final judgment, particularly in circumstances where the applicants sought to re-argue the merits of the appeal or introduce new evidence. A secondary issue concerned whether the parties should be permitted to make further submissions on the costs order made in the initial appeal.

The Court of Appeal held that rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) did not confer power on the Court to set aside its own final judgment. The Court affirmed that its power to set aside a judgment was limited to correcting clerical errors or errors arising from an accidental slip or omission. The Court found no basis for exercising any inherent jurisdiction to set aside the judgment, as the applicants had not demonstrated any exceptional circumstances or a miscarriage of justice that would warrant such an extraordinary measure. Furthermore, the Court determined that no further submissions on costs were necessary.

Consequently, the Court of Appeal dismissed the applicants’ notice of motion filed on 12 July 2024.