TriCare (Hastings) Limited v Allen

TriCare (Hastings) Limited appealed to the Court of Appeal of New South Wales against certain observations made by the primary judge in relation to the construction of section 130A of the *Residential Parks Act 1998* (NSW). The appellant did not challenge the primary judge's final judgment or order, but rather sought to clarify or correct an order that remitted a matter to the Tribunal, based on the primary judge's obiter dicta concerning the interpretation of section 130A.

The central legal issue before the Court of Appeal was whether the appeal was competent, having regard to the provisions of section 101(1) of the *Supreme Court Act 1970* (NSW). This section generally limits appeals to judgments or orders of a court or judge. The court was required to determine if the appellant's challenge to obiter dicta and its request for clarification or correction of a remittal order constituted an appealable judgment or order.

The Court of Appeal reasoned that an appeal under section 101(1) of the *Supreme Court Act 1970* lies from a judgment or order, not from obiter dicta. The appellant's attempt to appeal from the primary judge's observations, which were not binding pronouncements but rather statements made in passing, was therefore incompetent. The court held that the appeal was not properly constituted as it did not challenge a final judgment or order of the primary judge.

Consequently, the Court of Appeal dismissed the appeal as incompetent and ordered that each party bear its own costs.