JOHN LYSAGHT AUSTRALIA LIMITED v BUTFIELD [1995] NSWCA 221

JOHN LYSAGHT AUSTRALIA LIMITED vy BUTFIELD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 21 December 1995

[1995] NSWCA 221

Mahoney JA. I have asked the parties to be present in relation to this matter because it has some unusual features. While I propose to make orders that the parties have asked the Court by consent to make, I shall refer to certain matters so that what the Court does will not, I trust, be misunderstood.

This is a matter in which this Court made orders some time ago. The matter went on appeal to the High Court of Australia and, as I understand the position, the High Court upheld the appeal and directed that the matter be returned to this Court to be reconsidered in the light of the reasons which the Court had given for upholding the appeal, those reasons relating essentially to the reasons given in another similar matter, the name of which is sufficiently described as Dedousis v The Water Board. The result of the orders of the High Court is that the matter has been returned to this Court for reconsideration.

The parties have asked the Court, by consent, to allow the appeal, order that the orders by the judge below in the District Court be set aside, remit the application tothe District Court for determination and order that each party pay his or her or its costs of the proceedings in this Court.

As I have said the matter has been returned to this Court for reconsideration pursuant to the orders of the High Court. It is prima facie the duty of this Court to reconsider the matter itself. However, the parties have, for reasons which no doubt are perfectly proper and sufficient, asked the Court to make the consent orders to which I have referred. The fact the parties asked a Court to make consent orders does not necessarily mean the Court is bound to make those orders. The Court may feel it inappropriate to make consent orders if those orders are, in the circumstances, not the proper orders to be made. However, I propose to make the orders, to which the parties have consented, and which they each ask the Court to make.