Johnston v The Greens NSW (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Johnston v The Greens NSW (No 2) [2021] NSWCA 291

Hearing dates:

On the papers (written submissions 4 June, 15 June 2021)

Date of orders:

30 November 2021

Decision date:

30 November 2021

Before:

Meagher JA; Brereton JA

Decision:

1. Dismiss the notice of motion filed 7 January 2021.

2. Applicant to pay fourth and fifth respondents’ costs of that motion.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying, setting aside – application to set aside orders under UCPR rr 36.15, 36.16, 36.17 – no basis to set aside established – application dismissed

Legislation Cited:

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

Cases Cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

Bailey v Marinoff (1971) 125 CLR 529

Coles v Burke (1987) 10 NSWLR 429

DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17

Kendell v Carnegie (2006) 68 NSWLR 139; [2006] NSWCA 302

Majak v Rose (No 5) [2017] NSWCA 238

Newmont Yandal Operations Pty Ltd v J Aron Corporation (2007) 70 NSWLR 411; [2007] NSWCA 195

Owlstara v State of New South Wales (No 2) [2020] NSWCA 335

Category:

Consequential orders

Parties:

Daryl Lindsay Johnston (Applicant)
The Greens NSW Incorporated (First Respondent)
Christopher Maltby (Second Respondent)
Amalina Wallace (Third Respondent)
David Shoebridge (Fourth Respondent)
Abigail Boyd (Fifth Respondent)
Dawn Walker (Sixth Respondent)
Riki Scanlan (Seventh Respondent)
David Mallard (Eighth Respondent)
Christopher David Harris (Ninth Respondent)

Representation:

Solicitors:
Applicant self-represented
Deutsch Miller (Fourth and Fifth Respondents)

File Number(s):

2020/52723

Publication restriction:

Nil

Judgment

1. THE COURT: On 24 December 2020, this Court dismissed the applicant’s summons seeking leave to appeal from orders dismissing his summons seeking declaratory and other relief concerning the appropriate method by which to fill a casual vacancy in The Greens NSW’s list of nominees for the 2019 Legislative Council election and requiring the applicant and his co-plaintiff to pay the costs of the first, fourth and fifth defendants: Johnston v The Greens NSW [2020] NSWCA 357 (JA). On 7 January 2021, the applicant filed a notice of motion seeking to have the orders of 24 December 2020 set aside, the reasons re-opened, and new orders made, including an order that leave to appeal be granted. On 22 March 2021, directions were made for the filing and service of written submissions. The times for compliance with those directions were extended on 7 May 2021 and again on 7 June 2021. The Court has now received the written submissions of the applicant dated 4 June 2021, and the fourth and fifth respondents dated 15 June 2021.

2. Notwithstanding the applicant’s request for an oral hearing, the Court is firmly of the view that this application can and should now be determined on the papers, which in the applicant’s case consists of a further 23 pages of submissions.

3. Subject to very limited qualifications, even a common law court (as distinct from a court of statutory jurisdiction)…