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Woolf v Brandt (No 3)

Woolf v Brandt (No 3)

Case [2024] NSWCA 6 1 February 2024

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Woolf v Brandt (No 3) [2024] NSWCA 6
Hearing dates: On the papers
Date of orders: 1 February 2024
Decision date: 01 February 2024
Before: Kirk JA; Adamson JA
Decision:
The applicant’s motion filed on 14 December 2023 seeking that the Court set aside or vary its orders made on 30 November 2023 is dismissed.

Catchwords:
JUDGMENTS AND ORDERS – Motion to set aside or vary orders – Court of Appeal – Application under UCPR, r 36.16(3A) – Failure to comply with directions as to length of written submissions – Applicant seeking to reagitate issues – No basis for re-opening established

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(3A), 51.12(3)(a), 51.13(5)(a)

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Browne v Dunn (1893) 6 R 67
Chief Commissioner of State Revenue v Shell Energy Operations No 2 Pty Ltd (No 2) [2023] NSWCA 169
Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111
Gwe v Commissioner of Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247
Hanna v Maks [2003] NSWSC 158
Ming v Director of Public Prosecutions (DPP) (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Rock v Henderson [2021] NSWCA 155
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11
Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24
Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation) (2022) 96 ALJR 166; [2022] HCA 3
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Woolf v Brandt (No 2) (District Court (NSW), 28 November 2023, unreported)
Woolf v Brandt (No 2) [2023] NSWCA 309
Woolf v Brandt [2023] NSWCA 290

Category: Consequential orders
Parties: Richard Woolf (Applicant)
Nicholas Brandt (Respondent)
Representation:
Counsel:
Self-represented (Applicant)
T Smartt (Respondent)
Solicitors:
Not applicable (Applicant)
Youth Law Australia (Respondent)

File Number(s): 2023/214839
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

Woolf v Brandt (No 2) [2023] NSWDC 184

Date of Decision:

7 June 2023

Before:

Gibson DCJ

File Number(s):

2022/135926

JUDGMENT

THE COURT: In this matter the Court dismissed an application for leave to appeal from a decision of the District Court summarily dismissing the applicant’s claim in defamation as an abuse of process: Woolf v Brandt [2023] NSWCA 290 (First Decision). Orders were made on 30 November 2023, with reasons published on 5 December 2023. The Court subsequently made an order on 15 December 2023 that costs be paid in a specified gross sum: Woolf v Brandt (No 2) [2023] NSWCA 309.
This judgment concerns a motion filed by the applicant pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), and/or the inherent powers of the Court,…

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 Woolf v Brandt (No 3)

Details

AGLC: Woolf v Brandt (No 3) [2024] NSWCA 6
Case: [2024] NSWCA 6
Decision Date: 01 February 2024

CaseChat Overview and Summary

In *Woolf v Brandt (No 3)*, the applicant, Woolf, sought to have the Court of Appeal set aside or vary orders previously made by the court on 30 November 2023. The application was brought under rule 36.16(3A) of the Uniform Civil Procedure Rules.

The central legal issue before the Court of Appeal was whether the applicant had established a sufficient basis to warrant setting aside or varying the earlier orders. This involved considering whether the applicant's failure to comply with directions regarding the length of written submissions constituted grounds for re-opening the matter, and whether the applicant was attempting to re-agitate issues already determined by the court.

The Court of Appeal found that the applicant had not established any basis for re-opening the orders. The court determined that the failure to comply with the directions as to the length of written submissions did not provide a sufficient reason to set aside or vary the existing orders. Consequently, the applicant's motion was dismissed.

Orders

Orders of the court

The applicant’s motion filed on 14 December 2023 seeking that the Court set aside or vary its orders made on 30 November 2023 is dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Woolf v Brandt (No 3) [2024] NSWCA 6

Most Recent Citation

Save Wallum Incorporated v Clarence Property Corporation Limited [2024] FCA 967

Cases citing this decision · 4 of 4 shown

El-Saeidy v El-Shinawy
[2025] NSWDC 229 Para 2

…ting on the presence of the opposing party (such as seeking oral hearings in the hope that the opposing party will be present ( Woolf v Brandt (No 3) [2024] NSWCA 6).…
Mendonca v Tonna
[2025] NSWCA 112 Para 4

…king that step. The applicant’s motion has been determined on the papers, as is common practice for such applications: see eg Woolf v Brandt (No 3) [2024] NSWCA 6 at [21], and cases there cited.…
Save Wallum Incorporated v Clarence Property Corporation Limited
[2024] FCA 967 Para 23

…ef may be relevant to the question of whether it should be granted ( South East Forest Rescue Incorporated v Forestry Corporations of New South Wales [2024] NSWCA 6 at [33] (Griffiths AJA); citing Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd [1988] FCA 205; (1987) 76 ALR 633 at 63…
Woolf v Brandt (No 4)
[2024] NSWCA 47 Para 3

…that the Court set aside or vary the orders made on 30 November 2023. The Court dismissed that application on 1 February 2024: Woolf v Brandt (No 3) [2024] NSWCA 6 ( Woolf (No 3) ).…

View all 4 citing cases →

Cases cited in this decision · 23 of 23 shown

Woolf v Brandt (No 2)
[2023] NSWCA 309 Para 1

…hed on 5 December 2023. The Court subsequently made an order on 15 December 2023 that costs be paid in a specified gross sum: Woolf v Brandt (No 2) [2023] NSWCA 309.…
Woolf v Brandt
[2023] NSWCA 290 Para 1

…ave to appeal from a decision of the District Court summarily dismissing the applicant’s claim in defamation as an abuse of process: Woolf v Brandt [2023] NSWCA 290 ( First Decision ). Orders were made on 30 November 2023, with reasons published on 5 December 2023. The Court subsequently made an order on 15 Decembe…
State of New South Wales v Hollingsworth (No 2)
[2023] NSWCA 283 Para 7

…This Court recently summarised relevant principles applicable to such applications in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283:…
Chief Commissioner of State Revenue v Shell Energy Operations No 2 Pty Ltd (No 2)
[2023] NSWCA 169 Para 21

…stralian Federal Police (No 2) ; Hollingsworth (No 2) ; Chief Commissioner of State Revenue v Shell Energy Operations No 2 Pty Ltd (No 2) [2023] NSWCA 169. An oral hearing is not warranted in the circumstances here.…
Woolf v Brandt (No 2)
[2023] NSWDC 184

…le Number(s): 2023/214839 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: Woolf v Brandt (No 2) [2023] NSWDC 184 Date of Decision: 7 June 2023 Before: Gibson DCJ File Number(s): 2022/135926…
Dickson v Commissioner of the Australian Federal Police (No 2)
[2023] NSWCA 111 Para 9

…e applicant files a number of further documents beyond those permitted: note similarly Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111.…
Ming v Director of Public Prosecutions (NSW)
[2022] NSWCA 209 Para 8

…oes not extend to referring to every argument or piece of evidence”: Ming v Director of Public Prosecutions (DPP) (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [43]. Further, the content and detail of reasons to be provided “will vary according to the nature of the jurisdiction which the court is exercising and t…
Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (In liq)
[2022] HCA 3 Para 19

…ceedings is not consistent with authority: see eg Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation) (2022) 96 ALJR 166; [2022] HCA 3 at [19] and [131].…
Rock v Henderson
[2021] NSWCA 155 Para 13

…cant in cross-examination. He cites authority in which judges of this Court had discussed the rule in Browne v Dunn (1893) 6 R 67; Rock v Henderson [2021] NSWCA 155; Gwe v Commissioner of Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247. However, as the applicant himself submits in relation to that…
Victoria International Container Terminal Ltd v Lunt
[2021] HCA 11 Para 18

…v Spautz (1992) 174 CLR 509 at 526-527; [1992] HCA 34, and reaffirmed in Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [23]-[24], that a litigant may have a broader ultimate motive in pursuing proceedings does not render the proceedings abusive if the immediate pur…
Gwe v Commissioner of the Australian Federal Police (No 2)
[2020] NSWCA 350 Para 13

…his Court had discussed the rule in Browne v Dunn (1893) 6 R 67; Rock v Henderson [2021] NSWCA 155; Gwe v Commissioner of Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247. However, as the applicant himself submits in relation to that rule, “fairness needs to be considered in all the circumstances , not…
Gwe v Commissioner of the Australian Federal Police
[2020] NSWCA 247 Para 13

…d the rule in Browne v Dunn (1893) 6 R 67; Rock v Henderson [2021] NSWCA 155; Gwe v Commissioner of Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247. However, as the applicant himself submits in relation to that rule, “fairness needs to be considered in all the circumstances , not merely in one narr…
Lawrence v Ciantar (No 2)
[2020] NSWCA 186

…prises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9] (Campbell JA, McColl JA and Handley AJA agreeing) and Lawrence v Ciantar (No 2) [2020] NSWCA 186 (Bathurst CJ, Meagher and Gleeson JJA) at [6]. The power under r 36.16(3A) should be “exercised with great caution, having regard to the importance o…
PPK Willoughby Pty Ltd v Baird
[2019] NSWCA 48 Para 9

…e, or a reasonably clear injustice going beyond something which is merely arguable: see the authorities referred to in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6]. Those matters are the ones for the Court to address. That does not require the Court to engage in a close examination of the merits of the ca…
Majak v Rose (No 5)
[2017] NSWCA 238 Para 12

…igants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them”: Majak v Rose (No 5) [2017] NSWCA 238 (“ Majak ”) at [12]-[13] (Leeming and Simpson JJA, Emmett AJA). The purpose of the power is “to permit readily identifiable, readily rectifiable, inadvertent…
Wainohu v New South Wales
[2011] HCA 24 Para 8

…ch the court is exercising and the particular matter the subject of the decision”: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56].…
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2)
[2008] NSWCA 205 Para 9

…[19] These principles apply to applications under UCPR, r 36.16(3A): Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9] (Campbell JA, McColl JA and Handley AJA agreeing) and Lawrence v Ciantar (No 2) [2020] NSWCA 186 (Bathurst CJ, Meagher and Gleeson JJA) at [6]. The power under r 3…
Hanna v Maks
[2003] NSWSC 158 Para 20

…The applicant makes submissions seeking to distinguish, again, the judgment in Hanna v Maks [2003] NSWSC 158. That case was addressed in the First Decision at [50]-[53]. The applicant again manifests the misunderstanding that he is entitled on a re-opening application to attempt for a second time to persuade the Co…
Autodesk Inc v Dyason (No 2)
[1993] HCA 6

…ed without the complication and expense of an appeal”: Majak at [12]. [18] In Autodesk v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6 Mason CJ said: “What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension…
Williams v Spautz
[1992] HCA 34 Para 18

…As was indicated in Williams v Spautz (1992) 174 CLR 509 at 526-527; [1992] HCA 34, and reaffirmed in Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [23]-[24], that a litigant may have a broader ultimate motive in pursuing proceedings does not render the proceedings…
Briginshaw v Briginshaw
[1938] HCA 36 Para 15

…The applicant claims that this Court had overlooked his submissions about the need to apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Yet, consistently with that principle, the First Decision referred to “the heavy onus which lay on the respondent of proving that the proceedings were an abuse of…
Briginshaw v Briginshaw
[1938] HCA 34 Para 15

…e applicant claims that this Court had overlooked his submissions about the need to apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Yet, consistently with that principle, the First Decision referred to “the heavy onus which lay on the respondent of proving that the proceedings we…
Browne v Dunn
113 ER 1206 Para 13

…f abuse of process had not been put to the applicant in cross-examination. He cites authority in which judges of this Court had discussed the rule in Browne v Dunn (1893) 6 R 67; Rock v Henderson [2021] NSWCA 155; Gwe v Commissioner of Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247. However, as the ap…

Legislation cited in this decision · 1

Uniform Civil Procedure Rules 2005 (NSW)
36.16(3A), 51.12(3)(a), 51.13(5)(a) 4 mentions (from Para 2)

Medium Neutral Citation:	Woolf v Brandt (No 3) [2024] NSWCA 6
Hearing dates:	On the papers
Date of orders:	1 February 2024
Decision date:	01 February 2024
Before:	Kirk JA; Adamson JA
Decision:	The applicant’s motion filed on 14 December 2023 seeking that the Court set aside or vary its orders made on 30 November 2023 is dismissed.
Catchwords:	JUDGMENTS AND ORDERS – Motion to set aside or vary orders – Court of Appeal – Application under UCPR, r 36.16(3A) – Failure to comply with directions as to length of written submissions – Applicant seeking to reagitate issues – No basis for re-opening established
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(3A), 51.12(3)(a), 51.13(5)(a)
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 67 Chief Commissioner of State Revenue v Shell Energy Operations No 2 Pty Ltd (No 2) [2023] NSWCA 169 Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 Gwe v Commissioner of Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247 Hanna v Maks [2003] NSWSC 158 Ming v Director of Public Prosecutions (DPP) (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Rock v Henderson [2021] NSWCA 155 State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11 Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation) (2022) 96 ALJR 166; [2022] HCA 3 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Woolf v Brandt (No 2) (District Court (NSW), 28 November 2023, unreported) Woolf v Brandt (No 2) [2023] NSWCA 309 Woolf v Brandt [2023] NSWCA 290
Category:	Consequential orders
Parties:	Richard Woolf (Applicant) Nicholas Brandt (Respondent)
Representation:	Counsel: Self-represented (Applicant) T Smartt (Respondent) Solicitors: Not applicable (Applicant) Youth Law Australia (Respondent)
File Number(s):	2023/214839
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: Woolf v Brandt (No 2) [2023] NSWDC 184 Date of Decision: 7 June 2023 Before: Gibson DCJ File Number(s): 2022/135926