Will v Brighton (No 2)

[2021] NSWCA 8

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Will v Brighton (No 2) [2021] NSWCA 8

Hearing dates:

On the papers

Date of orders:

12 February 2021

Decision date:

12 February 2021

Before:

Bell P; Basten JA; Simpson AJA

Decision:

(1)     Upon the Applicant agreeing not to press that part of her application for leave to appeal seeking to set aside order 3 of the orders of Rothman J on 23 April 2020, grant leave to appeal.

(2)      Allow the appeal from orders 2 and 4 made by Rothman J on 23 April 2020.

(3)      Remit the matter to the Local Court to be determined in accordance with law.

(4)      No order as to costs of the appeal.

Catchwords:

APPEAL – application for leave to appeal – orders – where grant of application for leave to appeal conditioned on applicant agreeing not to press for an order setting aside the quashing of the conviction of the respondent – where resulting orders of Court of Appeal set aside an order allowing an appeal against conviction but also set aside an order dismissing charges under s 530(1) of the Crimes Act 1900 (NSW) and remit the matter to the Local Court for determination in accordance with law in circumstances where no express finding had been made in relation to the mental element of the charges preferred.

COSTS – where mixed outcome of proceedings in Court of Appeal – costs in the discretion of the Court – no order as to costs.

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Crimes Act 1900 (NSW) s 530(1)

Suitors’ Fund Act 1951 (NSW)

Cases Cited:

Brighton v Will (No 2) [2020] NSWSC 925

Category:

Consequential orders

Parties:

Natalie Will (Applicant)
Daniel Brighton (Respondent)

Representation:

Counsel:

Ms P McDonald SC with Ms C Ernst (Applicant)
Mr S Odgers SC with Mr M Sahade (Respondent)

Solicitors:

General Counsel, RSPCA (Applicant)
Gibson Howlin Lawyers (Respondent)

File Number(s):

2020/00156244

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 435

Date of Decision:

23 April 2020

Before:

Rothman J

File Number(s):

2019/195511

Judgment

1. THE COURT: On 23 December 2020, the Court delivered judgment in Will v Brighton [2020] NSWCA 355 (the principal judgment) with a direction that the parties file short submissions by 5 February 2021 as to the appropriateness of an order Bell P proposed at [107]:

“… conditioning the grant of leave to appeal on the applicant agreeing not to press her application for leave to appeal from order (3) made by the primary judge quashing the convictions (but otherwise allowing the appeal and setting aside the primary judge's dismissal of the charges) and agreeing to the remitter of the matter to the Local Court to be determined in accordance with law.”

2. The reasons why such an order was proposed were set out in Bell P’s reasons at [97]-[106], those of Basten JA at [126] and Simpson AJA at [141]-[142]. This…