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. Tact in accordance with s 46 of the Supreme Court Act, exercising the powers of the Court as a single judge. Although it is not strictly relevant to my powers, I may say that I have consulted the other available judge who was concerned with the original hearing of the matter, and he concurs in what I am doing. However, the decision and the orders are my orders made pursuant to s 46 and otherwise such powers as I may have in this regard. I have detailed these matters because it should not be taken from the fact that the Court is making orders by consent upholding the appeal and returning the matter to the judge below that the Court has formed the opinion that the orders which it had made were necessarily wrong. The problem confronting a court in the determination of matters of this kind is to determine what are the relevant principles and then to apply those principles to the facts of the particular case. In the Dedousis case the High Court upheld an appeal from a judgment of this Court dealing with those principles and applying 2 UNREPORTED JUDGMENTS them to an instant case. It remains, I think, for final consideration what was the basis on which the High Court upheld the appeal in the Dedousis case. I do not express any finalview in relation to that matter. I merely say that it has been suggested, and one possible view is, that the basis on which the appeal was upheld is a narrower, rather than a wider, basis and that the judgment of the High Court in the Dedousis matter does not or may not affect — I put the matter broadly — the substantial outcome of the questions which have been considered by this Court in this and other similar cases. As I have said, the effect of the High Court's decision remains for detailed examination by this Court in an appropriate case. It is, therefore, not to be taken that, because an order is made by consent in this matter, this Court is expressing any particular view as to the effect of the Dedousis decision in the present case or, in particular, expressing the opinion that the substantial conclusion at which it arrived in the present case was, as a matter of the application of proper principles, wrong. It may be that this Court, were it to undertake a detailed examination of the facts of this case in the light of the principles established by the High Court in Dedousis, would come to the same conclusion as it did. It may be it would not. Ihave, by articulating these matters in a detailed manner, sought to underline the fact that no inference is to be drawn from the fact that these orders are made. When the matter goes back to the District Court and is dealt with by a judge of that Court, that judge must exercise his own judgment in relation to the substantial merits of the matter as they are placed before him having regard to the decision of the High Court in Dedousis and otherwise; in particular, he is not to be influenced by the fact that this Court has made the consent orders that it has. I have expressed these matters at perhaps too great a length; but I have done so with a view to ensuring that what is done in this case is not misunderstood, and what may be done in other cases, in a similar way, is not misunderstood. As I have emphasised, and I repeat, the effect of the Dedousis case will ultimately require consideration by this Court. In the circumstances of this case, and having in mind the possibility that the matter may never come back to this Court, I have decided, in my judgment, to makethe orders which the parties have asked the Court to make. I make, therefore, the orders. The appeal is allowed. The orders of Judge Madgwick are to be set aside. The matter is to be remitted to the District Court for determination and each party is to pay his, her or its costs in relation to the proceedings in this Court. Orders accordingly.