Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Partington v Pacific Link Housing Ltd [2013] NSWCA 259 Hearing dates: 19 July 2013 Decision date: 09 August 2013 Before: Emmett JA at [1];
Leeming JA at [1];
Sackville AJA at [1]Decision: 1. Dismiss Mr Partington's motion filed 29 April 2013.
2. Order that Mr Partington pay Pacific Link's costs of his motion filed 29 April 2013 as agreed or assessed.
3. Vary order 4 made on 25 March 2013 by Ward JA so that it provides:
"Direct that Mr Partington be ordered to pay into the Registry of the Supreme Court of New South Wales the sum of $10,000 no later than 28 days from today, in default of which the proceedings are dismissed without further order."
4. Otherwise dismiss Pacific Link's motion filed 4 July 2013, with no order as to the costs of that motion.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - judicial review - review of decision of single judge of appeal: Supreme Court Act 1970, s 46 - extension of time - whether applicant established bias or error of principle
APPEAL - no appeal lies from decision of Consumer, Trader and Tenancy Tribunal - no appeal lies from decision of District Court dismissing appeal from that tribunal - proceeding in the nature of judicial review - inapplicability of UCPR r 51.50 - power to order security for costs
PROCEDURE - security for costs - impecuniousity - where order of security would likely stultify proceedings - circumstances where security may be ordered - abuse of process established - security ordered, with automatic dismissal if security not providedLegislation Cited: Civil Procedure Act 1995
Consumer, Trader and Tenancy Tribunal Act 2001
Convention for the Protection of Human Rights and Fundamental Freedoms
District Court Act 1973
Equity Act 1901
Judiciary Act 1903 (Cth)
Residential Tenancies Act 1987
Residential Tenancies Act 2010
Supreme Court Act 1970
Uniform Civil Procedure RulesCases Cited: Ali v Hudson [2003] EWCA Civ 1793
Al-Koronky v Time-Life Entertainment Group Ltd [2006] EWCA Civ 1123
Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293
Barakat v Goritsas (No 2) [2012] NSWCA 36
Brimelow v Sharpe [2012] NSWCA 345
Carey v Industrial Relations Commission [1999] NSWCA 189
Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86
Collier v Lancer [2013] NSWCA 185
Cowell v Taylor (1885) 31 Ch D 34
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Ford v Labrador (Gibraltar) [2003] UKPC 41;
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- Case
- [2013] NSWCA 259
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether Mr Partington had established grounds for judicial review, specifically concerning allegations of bias or error of principle in the prior judicial decision. Additionally, the court was required to determine the applicability of certain procedural rules, including the power to order security for costs in a proceeding in the nature of judicial review, and whether such an order would be appropriate in the circumstances.
The Court of Appeal reasoned that no appeal lay from the decision of the Consumer, Trader and Tenancy Tribunal or from the District Court's dismissal of an appeal from that tribunal. Consequently, the proceeding was properly characterised as one in the nature of judicial review. The court found that Mr Partington had not established bias or an error of principle sufficient to warrant judicial review. However, the court did find that Mr Partington's conduct constituted an abuse of process, and therefore, it was appropriate to order security for costs.
The Court of Appeal dismissed Mr Partington's motion filed on 29 April 2013 and ordered him to pay Pacific Link's costs for that motion. The court varied a previous order, directing Mr Partington to pay $10,000 into the court registry within 28 days, failing which his proceedings would be dismissed. Pacific Link's motion filed on 4 July 2013 was otherwise dismissed with no order as to costs.
Orders
Orders of the court
1. Dismiss Mr Partington's motion filed 29 April 2013.
2. Order that Mr Partington pay Pacific Link's costs of his motion filed 29 April 2013 as agreed or assessed.
3. Vary order 4 made on 25 March 2013 by Ward JA so that it provides:
"Direct that Mr Partington be ordered to pay into the Registry of the Supreme Court of New South Wales the sum of $10,000 no later than 28 days from today, in default of which the proceedings are dismissed without further order."
4. Otherwise dismiss Pacific Link's motion filed 4 July 2013, with no order as to the costs of that motion.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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