Penson v Titan National Pty Ltd - [2015] NSWCA 404

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Penson v Titan National Pty Ltd [2015] NSWCA 404
Hearing dates: 3 December 2015
Decision date: 16 December 2015
Before: Meagher JA; Gleeson JA; Simpson JA
Decision:
The Summons and Amended Summons are dismissed with costs.

Catchwords: SUMMONS - judicial review - Supreme Court Act 1970 (NSW), s 69 - application for judicial review of two decisions of Court of Appeal – no judicial review of orders of the same Court - Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 - Barton v Walker [1979] 2 NSWLR 740 - summons dismissed
Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 1.11(4), 59.10
Cases Cited: Barton v Walker [1979] 2 NSWLR 740
Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227
Penson v Titan National Pty Ltd [2015] NSWCA 165
Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 197
R v Wright; Ex parte Waterside Workers’ Federation of Australia [1955] HCA 35; 93 CLR 528
The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636
Texts Cited: LexisNexis Butterworths, Ritchie’s Uniform Civil Procedure NSW, vol 2, 2005
Category: Principal judgment
Parties: Shirley Penson (Applicant)
Titan National Pty Ltd (First Respondent)
Kathryn Wood-Weber (Second Respondent)
Supreme Court of New South Wales (Third Respondent)
Representation:
Counsel:
in person (Applicant)
P M Barham (First and Second Respondents)
V Musico (Third Respondent)
Solicitors:
N/A (Applicant)
Pure Legal (First and Second Respondents)
Crown Solicitors Officer (Third Respondent)

File Number(s): 2015/190593
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Court of Appeal

Citation:

Penson v Titan National Pty Ltd [2015] NSWCA 165
Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 197

Date of Decision:

5 June 2015; 15 July 2015

Before:

Ward and Leeming JJA

File Number(s):

2014/373155

Judgment

THE COURT: By Summons originally filed in this Court on 7 September 2015 and Amended Summons filed on 7 October 2015, the applicant, Ms Shirley Penson, seeks, purportedly under s 69 of the Supreme Court Act 1970 (NSW), judicial review of two decisions of the Court of Appeal constituted by Ward and Leeming JJA on 5 June 2015 and 15 July 2015.
In the proceedings the subject of the first judgment Ms Penson sought leave to appeal against decisions of Black J and Brereton J, both of the Equity Division. Ward and Leeming JJA dismissed the application, for reasons given by Ward JA with which Leeming JA agreed: Penson v Titan National Pty Ltd [2015] NSWCA 165. In the proceedings the subject of the second judgment, Ms Penson applied to their Honours to set aside or vary their judgment. That application also was refused with reasons given in a joint judgment: Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 197.
Ms Penson now purportedly…

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 404
Decision Date: 16 December 2015

CaseChat Overview and Summary

The applicant, Penson, sought judicial review of two decisions made by the Court of Appeal of the Supreme Court of New South Wales. The respondent was Titan National Pty Ltd. The application was brought under section 69 of the *Supreme Court Act 1970* (NSW).

The central legal issue before the Court of Appeal was whether it had jurisdiction to entertain an application for judicial review of decisions made by itself. Specifically, the court had to determine if section 69 of the *Supreme Court Act 1970* (NSW) permitted such a review, or if it was precluded by established principles of judicial review concerning the finality of appellate court decisions.

The Court of Appeal held that it did not have jurisdiction to review its own decisions. The court referred to established authorities, including *Fleet v Royal Society for the Prevention of Cruelty to Animals NSW* [2008] NSWCA 227 and *Barton v Walker* [1979] 2 NSWLR 740, which affirmed the principle that a court cannot sit in review of its own orders. The court reasoned that allowing such a review would undermine the finality of judgments and create an untenable situation where appellate decisions could be endlessly revisited by the same appellate court.

Consequently, the Summons and Amended Summons were dismissed with costs.

Orders

Orders of the court

The Summons and Amended Summons are dismissed with costs.

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:	Penson v Titan National Pty Ltd [2015] NSWCA 404
Hearing dates:	3 December 2015
Decision date:	16 December 2015
Before:	Meagher JA; Gleeson JA; Simpson JA
Decision:	The Summons and Amended Summons are dismissed with costs.
Catchwords:	SUMMONS - judicial review - Supreme Court Act 1970 (NSW), s 69 - application for judicial review of two decisions of Court of Appeal – no judicial review of orders of the same Court - Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 - Barton v Walker [1979] 2 NSWLR 740 - summons dismissed
Legislation Cited:	Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 1.11(4), 59.10
Cases Cited:	Barton v Walker [1979] 2 NSWLR 740 Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 Penson v Titan National Pty Ltd [2015] NSWCA 165 Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 197 R v Wright; Ex parte Waterside Workers’ Federation of Australia [1955] HCA 35; 93 CLR 528 The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636
Texts Cited:	LexisNexis Butterworths, Ritchie’s Uniform Civil Procedure NSW, vol 2, 2005
Category:	Principal judgment
Parties:	Shirley Penson (Applicant) Titan National Pty Ltd (First Respondent) Kathryn Wood-Weber (Second Respondent) Supreme Court of New South Wales (Third Respondent)
Representation:	Counsel: in person (Applicant) P M Barham (First and Second Respondents) V Musico (Third Respondent) Solicitors: N/A (Applicant) Pure Legal (First and Second Respondents) Crown Solicitors Officer (Third Respondent)
File Number(s):	2015/190593
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Court of Appeal Citation: Penson v Titan National Pty Ltd [2015] NSWCA 165 Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 197 Date of Decision: 5 June 2015; 15 July 2015 Before: Ward and Leeming JJA File Number(s): 2014/373155