Foote v Dixon - [2013] ACTCA 25

ANDREW FOOTE v SUSAN VIRGINIA DIXON
[2013] ACTCA 25 (14 June 2013)

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – appeal settled by consent – consent orders lodged including orders upholding appeal and ordering new trial – whether consent orders should be entered – whether parties needed to show arguable appealable error – respondent disputed arguable appealable error –whether court should order new trial without hearing appeal – whether court should order new trial given advice from parties that new trial would not in fact take place – whether parties’ seeking order for new trial amounted to forum-shopping or an abuse of the Court’s role – impact of proposal for new trial on judicial and court resources – consequences for court if parties’ agreement not to conduct new trial broke down – consent orders not to be entered – appeal to be listed for hearing before differently constituted Court of Appeal.

Citigroup Pty Ltd v Mason (2008) 171 FCR 96
Commonwealth Bank of Australia v Walker (2012) 289 ALR 674
Dr Andrew Foote v Michael Somes, Warren Johnson, Dr Catherine Sansum acting as Professional Standards Panel and Medical Board of the ACT and ACT Human Rights Commission [2012] ACTSC 63 (16 May 2012)
GW v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247
Susan Virginia Dixon v Andrew Foote & Calvary Health Care Limited [2012] ACTSC 101
Susan Virginia Dixon v Andrew Foote & Calvary Health Care Limited (No 2) [2012] ACTSC 119
Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy and Another (2008) 166 FCR 64

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 67 of 2012
No. SC 778 of 2007

Judge: Penfold, Burns and Cowdroy JJ
Supreme Court of the ACT

Date: 14 June 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 67 of 2012
  )          No. SC 778 of 2007
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANDREW FOOTE
Appellant

AND:SUSAN VIRGINIA DIXON
Respondent

ORDER

Judge:  Penfold, Burns and Cowdroy JJ
Date:  7 June 2013
Place:  Canberra

THE COURT OF ITS OWN MOTION ORDERS THAT:

The consent orders lodged on 25 February 2013 are not to be entered.

Each party is to pay its own costs of the motion (which does not include the costs of 20 February 2013, being the day listed for the hearing of the appeal).

Leave is granted to the parties to make any application to the Court within 21 days from the date of these orders.

Subject to any application made by a party under Order 3 above, the appeal ACTCA 67 of 2012 (Foote v Dixon) be listed for hearing as a contested appeal before a differently constituted Court of Appeal.

The parties have liberty to apply to the Registrar for a listing in accordance with Order 4.

IN THE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Foote v Dixon

Details

AGLC: Foote v Dixon [2013] ACTCA 25
Case: [2013] ACTCA 25
Decision Date: 14 June 2013

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application by the parties in *Foote v Dixon* to have consent orders entered, which would uphold an appeal and order a new trial. The respondent disputed that there was arguable appealable error, and both parties indicated that a new trial would not, in fact, take place.

The central legal issues before the Court were whether it should order a new trial without hearing the appeal, given the parties' agreement that a new trial would not occur, and whether such an application constituted an abuse of the Court's process or forum-shopping. The Court also had to consider the impact of such an order on judicial and court resources and the potential consequences if the parties' agreement not to conduct a new trial was later broken.

The Court reasoned that it was not appropriate to make orders for a new trial based solely on the parties' consent when there was no demonstrable appealable error and no intention to actually conduct a new trial. The Court held that entering consent orders for a new trial in these circumstances would be an improper use of the Court's resources and would undermine the integrity of the appellate process. The Court determined that the appeal should be listed for a hearing before a differently constituted Court of Appeal.

Orders