Corry v NHB Enterprises Pty Ltd [2023] NSWCA 162

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Corry v NHB Enterprises Pty Ltd [2023] NSWCA 162 Hearing dates: 27 June 2023 Date of orders: 13 July 2023 Decision date: 13 July 2023 Before: Meagher JA at [1]; Leeming JA at [38]; White JA at [39] Decision: (1) Dismiss the first appellant Mr Corry's Notice of Motion filed 17 March 2023 seeking the admission of Mr Borenstein's report as evidence in the appeal. (2) Dismiss the first appellant's Amended Notice of Appeal filed 20 March 2023. (3) Order the first appellant pay the respondents' costs of the appeal, including the costs of that Motion. (4) Dismiss the appeal made by Boriana Corry as second appellant in the Notice of Appeal filed 9 May 2022 with costs. Catchwords: CONTEMPT – civil contempt – admission of further evidence on appeal – whether psychiatrist's report should be admitted as evidence of appellant's vulnerable mental health condition and his father's occupation – appellant must demonstrate punishment orders are the result of legal, factual or discretionary error – where not contended that with the benefit of further evidence the primary judge must have made different punishment orders – application to admit further evidence refused because evidence not capable of establishing error – appeal dismissed APPEALS – admission of further evidence – appeal by way of rehearing – appellant must demonstrate order the subject of appeal the result of legal, factual or discretionary error Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6 Supreme Court Act 1970 (NSW), ss 75A, 101(5) Supreme Court Rules 1970 (NSW), Pt 55 r 13 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 Corry v NHB Enterprises Pty Ltd [2022] NSWCA 280 Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15; [1987] HCA 56 House v The King (1936) 55 CLR 499; [1936] HCA 40 Khoury v R [2011] NSWCCA 118 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Ladd v Marshall [1954] 1 WLR 1489 McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70 Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 Quilter v Mapleson (1882) 9 QBD 672 Searle v Commonwealth (2019) 100 NSWLR 55; [2019] NSWCA 127 Brown v Dean [1910] AC 373 Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 Category: Principal judgment Parties: Alexander Corry (First Appellant) NHB Enterprises Pty Ltd (First Respondent) Finn Pharmaceuticals Pty Ltd (Second Respondent) Representation: Counsel: A Chhabra with D Bhutani (First Appellant) D Roche with T Senior (Respondents)