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Tisdale v Ballanday

Tisdale v Ballanday

Case [2009] NSWSC 56 17 February 2009

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CITATION: Tisdale v Ballanday [2009] NSWSC 56

HEARING DATE(S): 11/11/2008

JUDGMENT DATE :
17 February 2009

JUDGMENT OF: Macready AsJ

CATCHWORDS: PRACTICE AND PROCEDURE - Review of registrars' decisions - Costs - Suitors' Fund Act 1951, s 6 - "appeal" - "decision of a court" - "question of law" - Held section 6 of the Suitors' Fund Act 1951 does apply to a review of registrars' decisions.

LEGISLATION CITED: Civil Procedure Act 2005
Suitors’ Fund Act 1951
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Burringbar Real Estate Centre Pty Limited v Anthony John Ryder and Ors [2008] NSWSC 891
Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors (No 2) [2004] NSWCA 337
Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491
Onions v Government Insurance Office of New South Wales (1956) 73 WN (NSW) 279
Siddik v Workcover Authority of NSW [2008] NSWCA 116
Thomas v State of New South Wales [2005] NSWSC 1061
Tomko v Palasty (No 2) [2007] NSWCA 369
X v Y [2000] NSWSC 952

PARTIES:
Tisdale & Ors v Ballanday Pty Limited & Ors

FILE NUMBER(S): SC 3094/2004

SOLICITORS: Ms Julie A Orsini (plaintiff)
Mr Valentino Musico (amicus curiae)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 17 FEBRUARY 2009

3094/ 04 TERRANCE ROLAND TISDALE & 3 ORS v BALLANDAY PTY LTD & 2 ORS

JUDGMENT

1 HIS HONOUR: When judgment was delivered on 18 November 2008, I reserved the question of whether a certificate under s 6(1) of the Suitors’ Fund Act 1951 should be issued in favour of the plaintiffs. I will deal with this question now. Ms Orsini made submissions on behalf of the plaintiffs and Mr Musico appeared as amicus curiae and made submissions on behalf of the New South Wales Attorney General’s Department.

2 Section 6 of the Suitors’ Fund Act provides:

“6 Costs of certain appeals
(1) If an appeal against the decision of a court:

(a) to the Supreme Court on a question of law or fact, or
(b) to the High Court from a decision of the Supreme Court on a question of law,

succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.
…
(7) An indemnity certificate shall not be granted in favour of:

(a) the Crown,
(b) a corporation that has a paid-up share capital of two hundred thousand dollars or more, or
(c) a corporation that does not have such a paid-up share capital but that, within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth, is related to a body corporate that has such a paid-up share capital, unless the appeal to which the certificate relates was instituted before the commencement of the Legal Assistance and Suitors’ Fund (Amendment) Act 1970

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.

Continue reading Tisdale v Ballanday

Details

AGLC: Tisdale v Ballanday [2009] NSWSC 56
Case: [2009] NSWSC 56
Decision Date: 17 February 2009

CaseChat Overview and Summary

In the case of Tisdale v Ballanday, the parties involved were the appellant, Tisdale, and the respondent, Ballanday. The dispute centred on the interpretation and application of the Suitors' Fund Act 1951, specifically section 6, in the context of a review of a registrar's decision. The matter was heard in the Supreme Court of Victoria, where the primary focus was on whether the provisions of the Act applied to a review of a registrar's decision and, if so, what constituted a "question of law" warranting a review under that section. The court had to determine whether the registrar's decision was subject to the legal criteria set out in section 6 of the Act.

The central legal issue before the court was whether the Suitors' Fund Act 1951, section 6, which provides for the review of decisions on questions of law, applied to the review of a registrar's decision. This involved interpreting the scope of the term "decision of a court" and whether it encompassed the decisions made by a registrar. Additionally, the court needed to ascertain what constituted a "question of law" in this context, and whether the registrar's decision could be considered a "decision of a court" for the purposes of section 6 of the Act.

The court held that section 6 of the Suitors' Fund Act 1951 did apply to a review of registrars' decisions, thereby extending the review mechanism to include decisions made by registrars. In doing so, the court clarified that the term "decision of a court" included decisions made by registrars when acting in a judicial capacity. Furthermore, the court found that a "question of law" in this context referred to matters that involved the interpretation or application of legal principles. The court concluded that the registrar's decision could indeed be reviewed under section 6, as it involved a question of law. Consequently, the court determined that the registrar's decision was subject to review and that the provisions of section 6 were applicable.

Orders