State of New South Wales v Hollingsworth (No 2)

The Court of Appeal of New South Wales considered an application by the respondent, Mr Hollingsworth, to vary orders previously made by the court. The State of New South Wales was the other party. The core of the dispute concerned Mr Hollingsworth's attempt to have the Court of Appeal alter its earlier decision, particularly in relation to costs and the resolution of case management issues.

The court was required to determine whether it had the power to entertain an amended notice of motion filed more than 14 days after the original orders were entered, when the initial notice of motion was filed within that 14-day period. It also had to consider whether a proper basis existed to make the variations sought, including whether it was appropriate for the Court of Appeal to resolve case management issues that had been litigated in the District Court. Furthermore, the court had to assess the application for a certificate under the Suitors' Fund, given the applicant's submissions' role in the primary judge's errors and the applicant's opposition to setting aside the primary judge's orders on appeal.

The court reasoned that while the initial notice of motion was filed within the 14-day timeframe stipulated by UCPR r 36.16(3A), an amended notice of motion filed outside this period could only be considered to the extent that the matters it raised were adequately notified within the initial 14-day period. The court found no basis for varying the costs order, as the question of costs had been addressed in the submissions on appeal. It also determined that it was inappropriate for the Court of Appeal to resolve case management issues that had been litigated in the District Court, and therefore refused the variations sought. The application for a Suitors' Fund certificate was also refused.

Consequently, the Court of Appeal dismissed both of Mr Hollingsworth's notices of motion and ordered that he pay the State's costs of the motions.