Wang v Farkas (No 3) - [2014] NSWCA 111

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wang v Farkas (No 3) [2014] NSWCA 111
Hearing dates: On the papers
Decision date: 08 April 2014
Before: Bathurst CJ at [1];
Beazley P at [2];
Basten JA at [3]
Decision:
(1) Remove from the record orders (1)-(5) entered on 26 February 2014 by mistake.
(2) Set aside the judgment and orders made in the District Court on 20 May 2011 in so far as they dismissed the appeal from the order made by the magistrate in the Local Court with respect to the costs of the proceedings before him.
(3) Set aside the judgment and orders of the District Court made on 20 May 2011 with respect to the costs of the appeal.
(4) Remit the matter to the District Court for final orders disposing of the appeal to that Court, in accordance with the judgments of this Court.
(5) Make no order as to the costs of the parties in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
PROCEDURE - judgment and orders - scope of power to make orders in supervisory jurisdiction - whether court can make only order properly available below -whether court can make order as to costs in court below - Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 and Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 considered
PROCEDURE - entry of judgment and orders - clerical mistake - proposed orders mistakenly entered - power to correct mistake or error in judgment or order - removal of orders from record - Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Legislation Cited: Judiciary Act 1903 (Cth), s 32
Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Cases Cited: Craig v South Australia [1995] HCA 58; 184 CLR 163
Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150
Wang v Farkas (No 2) [2014] NSWCA 57
Category: Procedural and other rulings
Parties: James Wang (First Applicant)
Y Ping Gu (Second Applicant)
George Farkas (Respondent)
Representation:
Counsel:

Applicants (Self-represented)
Respondent (Self-represented)
Solicitors:
Applicants (Self-represented)
Respondent (Self-represented)

File Number(s): CA 2013/22988
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-05-20 00:00:00

Before:

North DCJ

File Number(s):

DC 2006/16064; DC 2006/16035

Judgment

BATHURST CJ: I agree with Basten JA.

BEAZLEY P: I agree with the orders proposed by Basten JA in this matter and with his Honour's…

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 Wang v Farkas (No 3)

Details

AGLC: Wang v Farkas (No 3) [2014] NSWCA 111
Case: [2014] NSWCA 111
Decision Date: 08 April 2014

CaseChat Overview and Summary

The proceeding concerned an application by the plaintiff, Mr. Wang, to the Supreme Court of New South Wales for orders to correct mistakes in judgments and orders previously made. The dispute arose from orders entered on 26 February 2014, which were alleged to have been made by mistake, and related to a prior appeal heard in the District Court concerning costs orders made by a Local Court magistrate. The judges hearing the matter were Bathurst CJ, Beazley P, and Basten JA.

The primary legal issues before the Court were the scope of its power to make orders in its supervisory jurisdiction, specifically whether it could make an order as to costs in the court below, and the application of Uniform Civil Procedure Rules 2005 (NSW) r 36.17 concerning the correction of clerical mistakes or errors in judgments or orders. The Court considered the principles established in *Kirk v Industrial Court of New South Wales* and *Edwards v Santos Ltd* regarding the court's power to correct errors.

The Court reasoned that it possessed the power to remove orders entered by mistake from the record under r 36.17. It further determined that it could set aside the District Court's orders concerning the costs of the appeal and the costs of the proceedings before the Local Court magistrate, as these had been mistakenly made. The Court concluded that the matter should be remitted to the District Court for the final determination of the appeal, including the appropriate costs orders.

The Court ordered that the orders entered on 26 February 2014 be removed from the record. It also set aside the District Court's judgment and orders of 20 May 2011, both in relation to the dismissal of the appeal concerning the Local Court costs and with respect to the costs of the District Court appeal itself. The matter was remitted to the District Court for final orders disposing of the appeal, and no order was made as to the costs of the parties in the Supreme Court.

Orders

Orders of the court

(1) Remove from the record orders (1)-(5) entered on 26 February 2014 by mistake.

(2) Set aside the judgment and orders made in the District Court on 20 May 2011 in so far as they dismissed the appeal from the order made by the magistrate in the Local Court with respect to the costs of the proceedings before him.

(3) Set aside the judgment and orders of the District Court made on 20 May 2011 with respect to the costs of the appeal.

(4) Remit the matter to the District Court for final orders disposing of the appeal to that Court, in accordance with the judgments of this Court.

(5) Make no order as to the costs of the parties in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Wang v Farkas (No 3) [2014] NSWCA 111
Hearing dates:	On the papers
Decision date:	08 April 2014
Before:	Bathurst CJ at [1]; Beazley P at [2]; Basten JA at [3]
Decision:	(1) Remove from the record orders (1)-(5) entered on 26 February 2014 by mistake. (2) Set aside the judgment and orders made in the District Court on 20 May 2011 in so far as they dismissed the appeal from the order made by the magistrate in the Local Court with respect to the costs of the proceedings before him. (3) Set aside the judgment and orders of the District Court made on 20 May 2011 with respect to the costs of the appeal. (4) Remit the matter to the District Court for final orders disposing of the appeal to that Court, in accordance with the judgments of this Court. (5) Make no order as to the costs of the parties in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - judgment and orders - scope of power to make orders in supervisory jurisdiction - whether court can make only order properly available below -whether court can make order as to costs in court below - Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 and Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 considered PROCEDURE - entry of judgment and orders - clerical mistake - proposed orders mistakenly entered - power to correct mistake or error in judgment or order - removal of orders from record - Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Legislation Cited:	Judiciary Act 1903 (Cth), s 32 Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Cases Cited:	Craig v South Australia [1995] HCA 58; 184 CLR 163 Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150 Wang v Farkas (No 2) [2014] NSWCA 57
Category:	Procedural and other rulings
Parties:	James Wang (First Applicant) Y Ping Gu (Second Applicant) George Farkas (Respondent)
Representation:	Counsel: Applicants (Self-represented) Respondent (Self-represented) Solicitors: Applicants (Self-represented) Respondent (Self-represented)
File Number(s):	CA 2013/22988
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-05-20 00:00:00 Before: North DCJ File Number(s): DC 2006/16064; DC 2006/16035