Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 348

New South Wales Court of Appeal

CITATION: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 348

HEARING DATE(S): on the papers

JUDGMENT DATE: 13 December 2010

JUDGMENT OF: Allsop P; Hodgson JA; Macfarlan JA

DECISION: See par [10] of judgment.

CATCHWORDS: PRACTICE – Order directing inquiry – Whether Court of Appeal should direct that this not be before the primary judge.

LEGISLATION CITED: Conveyancing Act 1919 (NSW), s 129

CATEGORY: Consequential orders

Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 CASES CITED: Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Walker Corporation Limited v Sydney Harbour Foreshore Authority [2009] NSWCA 178

PARTIES: MACQUARIE INTERNATIONAL HEALTH CLINIC PTY LTD (appellant) SYDNEY SOUTH WEST AREA HEALTH SERVICE (respondent)

FILE NUMBER(S): CA 2009/298398

COUNSEL: R DUBLER SC/ S PHILIPS (appellant) G K BURTON SC/ P K BRUCKNER (respondent)

SOLICITORS: S Moran & Co (appellant) Bolzan & Dimitri (respondent)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298398

ALLSOP P HODGSON JA MACFARLAN JA

13 DECEMBER 2010 MACQUARIE INTERNATIONAL HEALTH CLINIC PTY LTD v SYDNEY SOUTH WEST AREA HEALTH SERVICE Judgment 1 THE COURT: Following delivery of the principal judgment in this matter on 14 October 2010 ([2010] NSWCA 268), the parties have submitted short minutes of order, which are largely agreed. 2 One matter that is not dealt with in the short minutes is the setting aside of costs orders made by Nicholas J on 7 October 2010, just before judgment was given on the appeal. An application for leave to appeal against these orders has now been filed. We propose to deal with these orders now to avoid further expenditure of costs. We shall give the parties an opportunity to vary what we propose to do. The costs orders made by the primary judge proceed on the basis of the primary judge's principal decision that is being set aside, and so they too should be set aside in their totality as a matter incidental to the setting aside of the principal decision. 3 The first matter of dispute concerns draft order 3(5). Area Health seeks the insertion of the words "essential terms of" and the addition of two further agreements. These matters were not explicitly decided by the Court, and in our opinion these insertions should not be made. 4 The second matter of dispute concerns proposed order 3(6), which is sought by Area Health and opposed by Macquarie. Again, in our view this was not explicitly decided, and indeed may reasonably be considered as having been explicitly left open by par [338] of the Court's principal judgment. In our opinion, proposed order 3(6) should not be made. 5 The final matter of dispute concerns the question whether the Court should make an order to the effect that the inquiry to be undertaken should not be before the primary judge. 6 Principles relevant to this question were stated as follows by Young JA (Beazley JA agreeing) in Walker Corporation Limited v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [119] to [121]: [119] The court certainly has power to remit a matter to a different judge. My researches have not discovered any overriding principle as to when it does so, but there are guidelines in the authorities. The key question is whether there will be a perception of a fair trial if the case is remitted to the judicial officer who previously heard it.