Category: Appeal
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Denial of procedural fairness
The primary judge’s conclusions as to the cause of Mr Kedwell’s injury were arrived at through his own analysis. They were not based on any expert evidence and were not reflective of any submission made to him. If that was the basis on which he was going to reject Mr Kedwell’s case that he suffered an injury…
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Azzopardi v Tasman UEB Industries Ltd
in AppealAzzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Workers' Compensation — Appeals — Jurisdiction of Court of Appeal — Distinction between appeal on question of fact or of law — Whether primary finding of fact can amount to error of law — Effect of perverse finding of fact Full text
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State of New South Wales (Sydney Local Health District) v BNV
in AppealState of New South Wales (Sydney Local Health District) v BNV [2026] NSWCA 77 Grounds of appeal and the requirement to identify “points of law” [26] An appeal under s 353(1) of the WIMWC Act must be conducted by reference to points of law arising in the decision under appeal. The concept of an appeal…
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State Rail Authority v Earthline Constructions: the trial judge’s advantage
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 Kirby J @ [90] The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to…
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fact & law
31. In principle, the construction of a term of a lease will involve a question of law. Often there is difficulty in determining whether what is said to constitute an error is an error as to (i) the fact finding, (ii) the statement of legal principle, or (iii) the application of the legal principle to…
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Reasons
in AppealLichaa v Boutros [2021] NSWCA 322 The need for reasons and the content of reasons to satisfy that obligation were conveniently summarised in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 per Ipp JA, with whom Bryson JA and Stein AJA concurred, at [56]-[68] but particularly at [56]-[57] and [61]: ”The judicial obligation to give reasons…
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Obvious risk: framing the relevant risk
Cox v Mid-Coast Council [2021] NSWCA 190 It was not appropriate specificallyto identify the Ferris wheel in the characterisation of the risk of harm: at [1] (Meagher JA); [41]-[42] (Payne JA); [85] (Emmett AJA). Although the risk of harm must be identified with sufficient specificity to capture the harm which resulted from its materialisation on the facts of…
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Fuller v Albert (No 3): notice of contention
in AppealFuller v Albert (No 3) [2021] NSWCA 226 [7] At the outset, it needs to be understood that a Notice of Contention – unlike a Notice of Appeal, or a Notice of Motion – is not a process which seeks relief, and does not require disposition in the sense of orders being made pursuant to…
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Appeals on apportionment
[77] … As Meagher JA explained in Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525: “[21] Because the task of apportioning responsibility involves the weighing of a number of considerations and the making of judgments about which minds might reasonably differ, it is well established that appellate courts should not interfere in the absence of some…
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Appeals – orders not reasons
in Appeal11. In relation to the appellant’s principal point, that he wishes to challenge the “finding” of the court below and the statutory construction underpinning it, it is axiomatic that parties are entitled to appeal from orders made and not reasons given: Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; [1968] HCA…