Lianos v Order of Ahepa NSW Inc (No 3)

The applicants, who were non-parties to the original proceedings, sought to reopen orders made by the Court of Appeal of New South Wales. The dispute concerned the admissibility of further evidence and the extension of a stay previously granted by the Court.

The primary legal issues before the Court were whether the applicants had an arguable case to adduce further evidence, whether they should be joined as parties to the proceedings, and whether the existing stay of orders should be extended pending the determination of their reopening application. The Court also considered the procedural fairness of not affording an opportunity to be heard to parties affected by the stay.

Basten JA considered the applicants' entitlement to seek a reopening of the orders, noting that such applications are exceptional. His Honour granted leave to file an amended notice of motion and to read an affidavit, but with specific restrictions on certain paragraphs to distinguish between assertions and submissions, and to treat some assertions as not necessarily statements of truth. The Court reasoned that the applicants had demonstrated an arguable case for the adduction of further evidence and that the balance of convenience favoured granting the extension of the stay.

The Court ordered that leave be granted to file and rely upon the amended notice of motion, and that it be filed forthwith. Leave was also granted to read the specified affidavit, subject to the stated restrictions. Crucially, the stay previously ordered by the Court on 26 November 2020, concerning orders 1-5 made on that date, was extended until the determination of the reopening application. The costs of the stay application were ordered to be the applicants’ costs of the motion.