Rock (Darren) v Henderson; Rock (Evelyn) v Henderson

[2024] NSWCA 289

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rock (Darren) v Henderson; Rock (Evelyn) v Henderson [2024] NSWCA 289

Hearing dates:

2 December 2024

Date of orders:

2 December 2024

Decision date:

02 December 2024

Before:

Basten AJA

Decision:

In matter 2024/223996 (Darren Rock):

(1)   Dismiss the notices of motion filed on 4 and 21 November 2024.

(2)   Order that the costs of the motions be costs in the appeal.

In matter 2024/223980 (Evelyn Rock):

(3)   Dismiss the notices of motion filed on 4 and 21 November 2024.

(4)   Order that the costs of the motions be costs in the leave application.

Catchwords:

CIVIL PROCEDURE – appeal – application for order for determination of issue by way of a separate question – application by respondent – grounds to be resisted – strength of appellants’ case not conceded – likelihood that other grounds will need to be addressed – separation likely to be neither efficient nor cost-effective

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 36.2, 51.1

Cases Cited:

Irlam v Byrnes (2022) 108 NSWLR 285; [2022] NSWCA 81

Palmer v Clarke (1989) 19 NSWLR 158

Category:

Procedural rulings

Parties:

2024/223980
Evelyn Stella Rock (Appellant)
Kim Kathleen Henderson (Respondent)

2024/223996
Darren Rock (Appellant)
Kim Kathleen Henderson (Respondent)

Representation:

Counsel:
E Chrysostomou (Appellants)
M S White SC (Respondent)

Solicitors:
Swifty Legal (Appellants)
Dettman Phair Lawyers (Respondent)

File Number(s):

2024/223980; 2024/223996

 Decision under appeal 

Court or tribunal:

District Court New South Wales

Jurisdiction:

Civil

Date of Decision:

9 May 2024

Before:

E Olsson SC DCJ

File Number(s):

2022/82363; 2020/233086

JUDGMENT

1. BASTEN AJA: The two matters listed together involve three members of a family, the respondent in each being the mother and the appellants being the father and daughter respectively. The father’s appeal is of right; the daughter’s requires leave and is therefore a summons seeking leave to appeal, she being the applicant. It will be convenient to refer to both father and daughter as “the appellants” for the purpose of the present motion.

2. The trial in the District Court took place over some eight days between June and August 2023. The trial judge, E Olsson SC DCJ, made orders on 9 May 2024, but reserved her reasons. When the father’s notice of appeal was filed on 9 August 2024, three months after the orders were made, the trial judge had not delivered her reasons. The two grounds of appeal relied on the failure to deliver reasons when pronouncing judgment, or within three months thereafter.

3. On 12 August 2024 reasons were provided. On 6 September 2024, an amended notice of appeal was filed. The two original grounds of appeal were maintained, but a further 25 grounds were added alleging errors by reference to the judge’s reasons. On 10 October, the daughter filed a summons seeking leave to appeal.

4. The appeal and the application for leave have been listed for hearing on 3 March 2025.

5. On 4 November 2024, the respondent filed notices of motion in each matter seeking that grounds 1 and 2 be determined as a preliminary issue by way of a separate question pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 28.2 and r 51.1(3). On 11 November 2024, the Registrar made orders that the proceedings be listed for hearing together and for the motions filed on 4 November to be listed on the date of the hearing.

6. On 21 November 2024, the respondent filed notices of motion seeking to set aside the order of the Registrar listing the application for a separate hearing of the first two grounds. The submissions in support of the motion were primarily that the separate question motions would lack utility if they were heard at the time of the hearing of the appeal, because the parties would be required to incur the costs of preparing for the appeal on the basis that they would need to address all grounds.

7. The respondent’s solicitor filed an affidavit indicating the likely cost differential between preparing for a full appeal and the preparation for and hearing of an appeal limited to the single issue referred to in the notice of motion and grounds 1 and 2.

8. It may be accepted that there would be such a differential if the appeal were limited to the single question as to whether the judgment should be set aside on the basis of delay in providing reasons for the orders made. However, the fact that the appellants immediately amended and extended their grounds to address the reasons which have now been provided indicates that they were not content to rely upon grounds 1 and 2 as originally pleaded. Nor does the respondent suggest that the additional grounds were unnecessary.

9. Because all parties recognise that success is not guaranteed on grounds 1 and 2, assessing the cost and efficiency of dividing the issues so as to have a separate hearing on grounds 1 and 2 must take account of the possibility that there would need to be a second hearing with respect to the other grounds. Nor will success on grounds 1 and 2 resolve the dispute, as might a limitation point; rather success will require a retrial.

10. The respondent submitted that the decision of this Court in Palmer v Clarke [1] supported the view that a 3-month delay in delivering reasons could (and possibly should) warrant the setting aside of a judgment and an order for a new trial. However, the respondent did not concede that an appeal would be allowed on that ground. I assume that she will seek to distinguish Palmer and contend that the judgment in her favour should be upheld. The legislative scheme is clearly distinguishable; if orders had not been made at an earlier point in time, without the delivery of reasons, but had been made when reasons were delivered, the present complaint would probably not have arisen. That suggests there may be an alternative reading of UCPR, r 36.2. Reference was also made to Irlam v Byrnes. [2]

    1. (1989) 19 NSWLR 158 (Kirby P, Samuels and Priestley JJA).

    2. (2022) 108 NSWLR 285; [2022] NSWCA 81 at [2] (Simpson AJA); [83]-[86] (Cavanagh J).

11. Delay in providing reasons is more commonly associated with a willingness on the part of the appeal court to apply a higher level of scrutiny to findings made by a trial judge than might otherwise have been the case. It is less usual for delay in itself to provide a basis for requiring a retrial. Thus, if grounds 1 and 2 were not considered sufficient in themselves, consideration of those grounds would then need to be repeated in considering the other grounds. Indeed, the other grounds appear to raise issues suggesting that the lapse of time and itself given rise to error. Thus, not only are grounds 1 and 2 not likely to be determinative of the outcome of the appeals, but, at least on a conventional approach, they may not be seen as independent grounds.

12. If no reasons had been provided, there might have been a case for exercise of the Court’s supervisory jurisdiction to order the trial judge to complete the trial by providing reasons. That course was not sought at any point, nor is it now necessary. Whether an application for mandamus would have been refused on the basis that the trial had already miscarried need not be determined. However, now that reasons have been given, the separation of grounds 1 and 2 will not be conducive to the efficient and cost-effective disposal of the proceedings in this Court. The fact that the proposed separation is sought by the respondent, who does not concede that the grounds must succeed, is a persuasive consideration in refusing to grant the motion.

13. There is no apparent purpose in listing the notice of motion seeking a separate hearing of grounds 1 and 2 of the appeals with the appeals. Accordingly, the better course is to dismiss the notice of motion.

14. The Court makes the following orders:

In matter 2024/223996 (Darren Rock):

1. Dismiss the notices of motion filed of 4 and 21 November 2024.

2. Order that the costs of the motions be costs in the appeal.

In matter 2024/223980 (Evelyn Rock):

3. Dismiss the notices of motion filed of 4 and 21 November 2024.

4. Order that the costs of the motions be costs in the leave application.

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Endnotes

Decision last updated: 02 December 2024