PAGE v McKENSEY [1996] NSWCA 418

PAGE v McKENSEY

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 29 January 1996

[1996] NSWCA 418

Priestley JA. There is a motion before the court by Mr Page asking that an appeal which was decided by this court on 28 February last year should be reopened. The notice of motion further asks that the reopened appeal be expanded to include reference to certain matters and that further evidence should be allowed.

Mr Page has presented the case for reopening the appeal in person. I would understand that to be because, as a result amongst other things of litigation, he is not in a position to obtain legal representation.

The appeal was argued on 17 February last year when Mr Page was represented by senior and junior counsel. The appeal was from orders made by Mr Justice Windeyer in partnership proceedings.

The appeal raised certain issues which the court decided. Following the pronouncement of the court's decision on 17 February last formal orders were passed and entered.

Mr Page accepted that what is stated in the headnote of Haig v The Minister (1994) 85 LGERA 143 was an appropriate statement of the law. The headnote summarised the position as being that the President Mr JusticeKirby said and Mr Justice Handley and I assumed, that it was the law that the Court of Appeal has jurisdiction to set aside a previously perfected order which it has made and allow reopening of the appeal concluded by that order but the jurisdiction is confined to the most exceptional circumstances.

Mr Page said that the exceptional circumstances in his case were that the trial court had been misled by the conduct of the opposing parties and that it followed that this court had decided the appeal on incorrect evidence. Had the proper evidence been before the court the result would have been different. He was, therefore, suffering from an injustice and the court should exercise its exceptional power and reopen the matter to allow the case to be decided on what, in his contention, would be the proper and correct evidence.