Wende v Horwath (No 2) [2015] NSWCA 416

Beazley ACJ at [1];
 Basten JA at [91];
 Adamson J at [142]

15 …as the proceedings before the Court were brought pursuant to the Supreme Court Act 1970 (NSW), s 69 by way of judicial review, the Court is concerned with error of law on the face of the record and/or jurisdictional error.

17 A superior court’s supervisory jurisdiction, not being an appellate process, does not permit the superior court to substitute its own orders for those that it considers the inferior court ought to have made: Craig v South Australia [1995] HCA 58; 184 CLR 163.

58 There is a long line of authority that where an appeal is limited to a question of law, the appellate body is limited to a determination of the question of law and is not permitted to engage in a fact finding process or to otherwise engage in a merits review of the decision of the lower court or tribunal.

65 … the law is plain that on an appeal on a question of law, there is no power for the appellate body to make findings of fact, let alone to itself embark upon a hearing of the subject matter of the dispute as occurred here.

73 … Whilst there are occasions when a court will permit additional arguments to be raised after the conclusion of the hearing proper, that is not the usual course: see Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 257-258. This Court has clearly stated its position in this regard: see Wollongong City Council v Legal Business Centre Pty Ltd (No 2) [2012] NSWCA 366 at [32]; Bale v Mills [2011] NSWCA 266; 81 NSWLR 498 at [57], where the Court observed:

“The High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without, or outside, any leave given.” (citations omitted)

….

75 There is authority that an order for costs includes costs that are incidental to the proceedings, including costs incurred in the preparation of a bill of costs. Thus, in Hobart City Council v Triffett [2001] TASSC 139; 10 TasR 471 Evans J stated, at [5], that it had been long recognised that where legislation conferred a power to award costs, those costs extended to matters incidental to the proceeding. His Honour added, at [8], that it had been accepted without controversy that an order for costs included the costs of subsequent matters such as itemising the costs and improving or taxing the costs. See also Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 178; 24 VR 155 at [9] where the court referred to the conventional understanding that where a party is ordered to pay the costs of proceedings, the liability for costs extends to costs of and incidental to the proceedings.

101 … Where a statute vests power in a particular court or tribunal, subject to a right of appeal in a dissatisfied party, it will usually be appropriate to read the powers conferred on the trial court as engaged where an appellate court has exercised some part of the jurisdiction of the trial court. Similarly, the powers of the District Court should be read as engaged where a precondition to the exercise of its power has been undertaken by this Court in the exercise of its supervisory jurisdiction.