Boensch v Transport for NSW [2024] NSWCA 86

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boensch v Transport for NSW [2024] NSWCA 86 Hearing dates: 17 April 2024 Date of orders: 17 April 2024 Decision date: 17 April 2024 Before: Leeming JA Decision: 1. Dismiss Transport for NSW's notice of motion filed 15 March 2024, with costs. 2. Dismiss Mr Boensch's notice of motion dated 27 March 2024, with costs. 3. Grant leave to Mr Boensch to file and serve a further amended notice of appeal in accordance with the document at pages 15-17 of tab 10 of the Court Book, but excluding orders 12, 13 and 14 of the orders sought on page 5. 4. Liberty to the parties to apply by email to the Associate of Leeming JA within 1 working day's notice. Catchwords: PRACTICE – summary dismissal – notice of intention to appeal and notice of appeal filed late – whether appeal should be dismissed on basis of delay and insufficiency of prospects – delay minor – difficulty in assessing prospects in absence of appeal books and respondents' submissions – lack of utility in determining questions of law in light of right of review – application for summary dismissal refused PRACTICE – security for costs – respondents in breach of procedural directions – application brought late – appeal to be heard in five business days – majority of costs the subject of the application already incurred - significance of delay – application for security for costs dismissed Legislation Cited: Coastal Management Act 2016 (NSW), s 28 Coastal Protection Act 1979 (NSW), s 55N Encroachment of Buildings Act 1922 (NSW) Land and Environment Court Act 1979 (NSW), s 57 Real Property Act 1900 (NSW), ss 135B, 135D, 135J, Pt 14A Supreme Court Act 1970 (NSW), s 46 Uniform Civil Procedure Rules 2005 (NSW), rr 1.11, 42.1, 51.8 Cases Cited: Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 M & W Zaki Pty Ltd v MindChamps Preschool Ltd [2022] NSWCA 140 Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37; [2011] HCA 54 Skates v Hills Industries Ltd [2021] NSWCA 142 Stankovic v Peter Magee T/as Armstrong Legal [2014] NSWCA 191 Category: Procedural rulings Parties: Franz Boensch (Appellant) Transport for NSW (First Respondent) Registrar General for New South Wales (Second Respondent) Representation: Counsel: Mr Boensch in person A Shearer (Transport for NSW) (First Respondent) V Jeavons (Registrar General) (Second Respondent)