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Appeals on apportionment

By oooo / March 10, 2020 / Comments Off on 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

By robertsheldon / September 12, 2019 / Comments Off on Appeals – orders not reasons

11. 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…

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Allowing an appeal by consent

By robertsheldon / August 22, 2019 / Comments Off on Allowing an appeal by consent

In this regard, as the Full Court held in Bradken Limited v Norcast S.AR.L [2013] FCAFC 123;  (2013) 219 FCR 101at  [2]: … the exercise of the power to allow an appeal by consent is dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below. (at [9] CQX18 v Minister for…

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Appellate review of an award of non-economic loss

By robertsheldon / June 26, 2019 / Comments Off on Appellate review of an award of non-economic loss

White v Redding [2019] NSWCA 152 Non-economic loss Relevant statutes and legal principles At common law, general damages for pain and suffering resulting from personal injury were “almost entirely [a] matter of impression and of common sense, and [were] only subject to review in very special cases” (Miller v Jennings [1954] HCA 65; (1954) 92…

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Leave to appeal

By robertsheldon / June 1, 2019 / Comments Off on Leave to appeal

[28] In PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, this Court made reference to the proper approach of an intermediate appellate court to applications for leave to appeal from interlocutory decisions involving the exercise of discretion on questions of practice and procedure. The Court observed (at [5]) that discretionary decisions “engage the strictures against over-ready appellate…

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Appealing against the exercise of a judicial discretion

By robert / May 31, 2018 /

Elzahed v State of New South Wales [2018] NSWCA 103 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…

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The place of "error" in the appellate process

By robert / October 30, 2017 /

STRINGER & OR v WESTFIELD SHOPPING CENTRE MANAGEMENT CO (SA) PTY LTD [2017] SASCFC 138 A trial Judge has primary responsibility for factual adjudication.  The Judge’s findings should not be disturbed unless good and sufficient reason to do so is positively established by the plaintiff.  In Fox v Percy,[10] the plurality, after referring to Warren…

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Leave to appeal

By robert / August 5, 2017 /
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What is an "order"

By robert / May 16, 2017 /

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100 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…

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Approach to factual findings in an appeal

By robert / April 4, 2017 /
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