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Appealing against the exercise of a judicial discretion May 31, 2018

Elzahed v State of New South Wales [2018] NSWCA 103
  1. When a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on the party who contends on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters, at least unless they were fundamental and obvious. The alternative approach would permit a party to run one case before the primary judge and different cases on appeal: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120]-[121].

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