BARING v RUSSELL EDWARDS DESIGN SERVICES PTY LTD [2008] NSWCA 58

New South Wales Court of Appeal

CITATION: BARING v RUSSELL EDWARDS DESIGN SERVICES PTY LTD [2008] NSWCA 58

HEARING DATE(S): 1 February 2008

JUDGMENT DATE: 9 April 2008

JUDGMENT OF: Beazley JA at 1; Basten JA at 2; Mathews AJA at 31

(1) Dismiss the application for leave to appeal from the judgment of Harrison J delivered on 2 March 2007 in the Common Law Division. DECISION: (2) Dismiss the application for leave to cross-appeal from the judgment of Harrison J dated 8 March 2007 in the Common Law Division. (3) Grant the defendants in the Common Law Division a certificate under the Suitors' Fund Act 1951 (NSW) subject, in the case of the second defendant, to it not being disqualified pursuant to s 6(7) of that Act. (4) Make no order as to the costs of the parties in this Court.

CATCHWORDS: APPEAL – appeal from Local Court to Supreme Court – Local Courts Act 1982 (NSW) ss 73, 74 – relief where determination unfair to one party – need for remittal – discretionary considerations - APPEAL – from judgment in Division – application for leave to appeal – refusal on discretionary grounds – likely costs disproportionate to amount in issue - COSTS – costs follow the event – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 – exercise of discretion to refuse to award costs - PROCEDURAL FAIRNESS – breach by Magistrate – adverse findings based on inferences not put to witness – power of Court to substitute judgment

Courts Legislation Amendment Act 2003 (NSW), Schedule 6 [3] Local Courts Act 1982, ss 73, 74, 75 LEGISLATION CITED: Local Courts (Civil Claims) Act 1970 (NSW), s 12 Suitors' Fund Act 1951 (NSW), s 6 Uniform Civil Procedure Rules 2005 (NSW), r 42.1