Schenck Australia Pty Limited v Australian Coal Technology Pty Limited [2006] NSWCA 211

New South Wales Court of Appeal

CITATION: Schenck Australia Pty Limited v Australian Coal Technology Pty Limited [2006] NSWCA 211 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 June 2006

JUDGMENT DATE: 23 June 2006

JUDGMENT OF: Beazley JA at 1; Santow JA at 42; Tobias JA at 45

EX TEMPORE JUDGMENT DATE: 06/23/2006

DECISION: Orders: see para 41

CATCHWORDS: PROCEDURE – discovery – claim that discovery is oppressive – trial judge failed to engage in balancing exercise required – failure of trial judge to give a fair hearing and reasonable opportunity to be heard – improper assessment of case during hearing – inadequate hearing due to judicial time pressure – miscarriage of justice - JUDGMENT – extempore judgment – revision of judgment after hearing – reference added to evidence without having had proper regard to that evidence during the hearing – trial judge failed to give proper consideration to issues - PROCEDURE – counsel had not previously taken objection to manner in which case dealt with by trial judge – whether precluded from raising issue on appeal – nothing justifies usurpation of justice in favour of court efficiency and case management

Civil Procedure Act 2005 (NSW) ss 56, 57, 58 LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 21.2

Calin v Greater Union Organisation Pty Limited (1991) 173 CLR 33 Eggins v Brooms Head Bowling and Recreational Club (1986) 5 NSWLR 521 CASES CITED: Morawski v State Rail Authority (1988) 14 NSWLR 374 National Australia Bank Limited v Idoport Pty Limited (2000) NSWCA 8 State of Queensland and Anor v JL Holdings Pty Limited (1996-1997) 189 CLR 146 Todorovic v Moussa (2001) 53 NSWLR 463