Jensen Laundry Systems Australia Pty Ltd v Raskopoulos - [2015] NSWCA 352

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jensen Laundry Systems Australia Pty Ltd v Raskopoulos [2015] NSWCA 352
Hearing dates: 21 October 2015
Date of orders: 21 October 2015
Decision date: 18 November 2015
Before: Meagher JA; Gleeson JA
Decision:
1. Dismiss the applicants’ summons.
2. Order the applicants pay the respondent’s costs of the summons on the ordinary basis.

Catchwords:
PROCEDURE – application for leave to appeal against order allowing joinder application and adjourning proceedings – where matter of practice and procedure, no question of general importance, no apparent utility in event appeal allowed, no reasons given or sought and transcript did not reveal obvious error in exercise of discretion – leave to appeal refused
PROCEDURE – application for leave to appeal against dismissal of application for disqualification for apprehended or actual bias – no articulation of connection between conduct relied on and possible departure from impartial decision-making – leave to appeal refused
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Legal Profession Act 2004 (NSW), ss 345, 348
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Barakat v Goritsas (No 2) [2012] NSWCA 36
Keddie v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254; 293 ALR 764
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427
Category: Procedural and other rulings
Parties: Jensen Laundry Systems Australia Pty Ltd (First Applicant)
Jensen Holdings A/G Limited (Second Applicant)
Rebecca Raskopoulos (Respondent)
Representation:
Counsel:
G Curtin SC with G Ng (First and Second Applicants)
D Hooke SC with G Guirguis (Respondent)
Solicitors:
RGSLAW (First and Second Applicants)
Beilby Poulden Costello Lawyers (Respondent)

File Number(s): 2015/166079
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Date of Decision:

6 and 8 May 2015, 22 June 2015

Before:

Adams J

File Number(s):

2011/139973

Judgment

THE COURT: The applicants sought leave to appeal from interlocutory orders of the primary judge (Adams J) made in proceedings brought by the respondent for injuries allegedly sustained in a work accident on 10 May 2008.
At the conclusion of oral argument on 21 October 2015 the Court made the following orders:

1. Dismiss the applicants’ summons.
2. Order the applicants pay the respondent’s costs of the summons on the ordinary basis.

The Court reserved its reasons for the making of these orders. Those reasons follow.

The underlying proceedings

The applicants are related companies and the second applicant is a foreign corporation. In her proceedings against them the respondent alleges that she was crushed between an industrial ironing machine, on which she was working, and an associated “Feeder” machine that had been designed and manufactured by the applicants, and installed and maintained by the first applicant.
The claim was listed for hearing before the primary judge in the week commencing 4 May 2015. On 5 May 2015, and before any oral evidence had been led, the respondent applied to join…

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.

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Details

Case: [2015] NSWCA 352
Decision Date: 18 November 2015

CaseChat Overview and Summary

Jensen Laundry Systems Australia Pty Ltd and others (applicants) sought leave to appeal against two orders made by a judge of the Supreme Court of New South Wales. The first order allowed an application to join a party to the proceedings and adjourned the proceedings. The second order dismissed an application for the disqualification of the judge on the grounds of apprehended or actual bias.

The court was required to determine whether to grant leave to appeal against these two orders. In relation to the first order, the court considered whether the matter involved a question of general importance, whether there would be any utility in allowing an appeal, and whether there was an apparent error in the exercise of the judge's discretion, given that no reasons were given or sought and the transcript did not reveal an obvious error. Regarding the second order, the court considered whether the applicants had articulated a sufficient connection between the conduct they relied upon and a possible departure from impartial decision-making by the judge.

On the first ground, the court found that the matter was one of practice and procedure, did not raise a question of general importance, and that there would be no apparent utility in allowing an appeal even if it were successful. The court also noted the absence of reasons for the original decision and the lack of an obvious error in the exercise of discretion. On the second ground, the court found that the applicants had failed to articulate a connection between the conduct they relied upon and any possible departure from impartial decision-making.

Consequently, the court dismissed the applicants’ summons and ordered the applicants to pay the respondent’s costs of the summons on the ordinary basis.

Orders

Orders of the court

1. Dismiss the applicants’ summons.

2. Order the applicants pay the respondent’s costs of the summons on the ordinary basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Jensen Laundry Systems Australia Pty Ltd v Raskopoulos [2015] NSWCA 352
Hearing dates:	21 October 2015
Date of orders:	21 October 2015
Decision date:	18 November 2015
Before:	Meagher JA; Gleeson JA
Decision:	1. Dismiss the applicants’ summons. 2. Order the applicants pay the respondent’s costs of the summons on the ordinary basis.
Catchwords:	PROCEDURE – application for leave to appeal against order allowing joinder application and adjourning proceedings – where matter of practice and procedure, no question of general importance, no apparent utility in event appeal allowed, no reasons given or sought and transcript did not reveal obvious error in exercise of discretion – leave to appeal refused PROCEDURE – application for leave to appeal against dismissal of application for disqualification for apprehended or actual bias – no articulation of connection between conduct relied on and possible departure from impartial decision-making – leave to appeal refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Legal Profession Act 2004 (NSW), ss 345, 348
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Barakat v Goritsas (No 2) [2012] NSWCA 36 Keddie v Stacks/Goudkamp Pty Ltd [2012] NSWCA 254; 293 ALR 764 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427
Category:	Procedural and other rulings
Parties:	Jensen Laundry Systems Australia Pty Ltd (First Applicant) Jensen Holdings A/G Limited (Second Applicant) Rebecca Raskopoulos (Respondent)
Representation:	Counsel: G Curtin SC with G Ng (First and Second Applicants) D Hooke SC with G Guirguis (Respondent) Solicitors: RGSLAW (First and Second Applicants) Beilby Poulden Costello Lawyers (Respondent)
File Number(s):	2015/166079
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Date of Decision: 6 and 8 May 2015, 22 June 2015 Before: Adams J File Number(s): 2011/139973