Archive for Appeal

Leave to appeal

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What is an “order”

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100
  1. In written submissions, the respondent relied squarely upon the judgment of this Court in Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd. [1] The respondent referred in particular to the statement by Spigelman CJ that “[i]n its natural and ordinary meaning, the word ‘order’ would not encompass a refusal to make an order.” For that proposition, the Chief Justice relied upon the reasoning of Fullagar J in The King v Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draftsman of Australia, and of Lord Herschell in Boulter v Kent Justices.

Approach to factual findings in an appeal

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Review of single appellate judge orders by full court

Supreme Court Act, 1970

46   Powers of Judge of Appeal
(1)  A Judge of Appeal may exercise the powers of the Court of Appeal:
       (a)  to give any judgment by consent or make any order by consent,
       (b)  to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules,
       (c)  to dismiss an appeal or other proceedings on the application of the appellant or plaintiff, or
       (d)  to deal with costs and other matters incidental to the matters mentioned in paragraphs (a), (b) and (c).
(2)  A Judge of Appeal may exercise the powers of the Court of Appeal:
      (a)  to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or
      (b)  to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.
(3)  Subsection (2) does not authorise a Judge of Appeal to grant or refuse leave to appeal to the Court of Appeal.
(4)  The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal.
(5)  Subject to subsection (4), a judgment, order or direction given or made by a Judge of Appeal is to have effect as a judgment, order or direction of the Court of Appeal, whether or not the judgment, order or direction is within the powers of the Judge of Appeal under this section.

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Challenges to non-economic loss awards

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