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:
- Date of Decision:
- 23 April 2020
- Before:
- Rothman J
- File Number(s):
- 2019/195511
Judgment
-
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.”
-
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…
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- AGLC
- Will v Brighton (No 2) [2021] NSWCA 8
- Case
- [2021] NSWCA 8
- Decision Date
CaseChat Overview and Summary
The central legal issues involved the court's discretion regarding the grant of leave to appeal and the subsequent determination of the appeal itself. Specifically, the court had to consider the implications of the applicant's agreement not to press for the setting aside of a specific order, and how this affected the appeal against other orders made by Rothman J. The court also had to address the disposition of the charges under s 530(1) of the *Crimes Act 1900* (NSW), particularly in circumstances where no express finding had been made regarding the mental element of those charges.
The Court of Appeal, comprising Bell P, Basten JA, and Simpson AJA, granted leave to appeal on the condition that the applicant did not press for the setting aside of order 3 of Rothman J's orders. The court then allowed the appeal against orders 2 and 4 made by Rothman J, and remitted the matter to the Local Court for determination in accordance with law. In exercising its discretion regarding costs, the court noted the mixed outcome of the proceedings and made no order as to costs of the appeal.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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