Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Young v King [2013] NSWCA 364 Hearing dates: On the papers Decision date: 31 October 2013 Before: Leeming JA Decision: In proceeding 2013/162966, by consent: (1) Appeal upheld. (2) Remit the proceeding to Sheahan J for determination. (3) Respondents to pay the appellant's costs of the appeal. (4) Respondents to have a certificate pursuant to s 6 of the Suitors' Fund Act 1951, if so qualified. In proceeding 2013/46329: Direct the parties to bring in within seven days agreed short minutes of order dealing with proceeding 2013/46329, or alternatively within that time to serve and supply to the Associate to Justice Leeming proposed orders accompanied by short submissions as to the future conduct of that proceeding, including whether any oral hearing is requested and, if so, the reasons why to do so would be consistent with s 56 of the Civil Procedure Act 2005. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - Consent orders allowing appeal - Court satisfied that respondents' concessions of appellable error properly made Legislation Cited: Civil Procedure Act 2005, s 56 Supreme Court Act 1970, s 46(1)(a) and (5) Revised Professional Conduct and Practice Rules 1995, r 19 Cases Cited: Cameron v Qantas Airways Ltd [2009] NSWCA 339 John Lysaght Australia Ltd v Butfield [1995] NSWCA 221 Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Category: Principal judgment Parties: In proceeding 2013/162966: Margo Young (appellant) Brendan King (first respondent) Kristina King (second respondent) In proceeding 2013/46329: Margo Young (applicant) Land & Environment Court of NSW (first respondent) Brendan King (second respondent) Kristina King (third respondent) Representation: Counsel: R Newell (appellant/applicant) M Wright (all respondents other than first respondent in proceeding 2013/46329) Solicitors: LC Muriniti & Associates (appellant/applicant) Terrence Stern (all respondents other than first respondent in proceeding 2013/46329) Crown Solicitor's Office (first respondent in proceeding 2013/46329) File Number(s): 2013/162966 2013/46329 Decision under appeal Citation: [2012] NSWLEC 236 Date of Decision: 2012-10-19 00:00:00 Before: Sheahan J File Number(s): LEC 2003/40417 Judgment 1LEEMING JA: Leave to appeal from the interlocutory decision of Sheahan J was granted by the Court constituted by Tobias AJA and me on 22 August 2013. The appeal was set down to be heard on Monday 28 October 2013. By correspondence between the parties and the Registrar of this Court between 21 and 25 October, it became clear that the respondents consented to orders allowing the appeal with costs, and remitting the proceedings to Sheahan J for determination. Those orders reflect two concessions made by the respondents, in their submission of 24 October, in these terms (some references have been omitted or abbreviated): "First, his Honour erred in holding that, by reason of the decision of the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, the Land and Environment Court did not have implied jurisdiction to set aside a final order of a judge of that Court: at [392]. Secondly, his Honour erred in summarily dismissing the Appellant's Notice of Motion in the manner that he did. The application for summary dismissal was based solely upon the Appellant's oral opening. However, in upholding the application for summary dismissal, his Honour referred to and accepted the Respondents' written submissions relating to the adequacy of the Appellant's evidence without receiving the Appellant's evidence relied upon in support of the Notice of Motion: at [398]-[402]." 2The correspondence (which I have not reproduced) included claims by the appellant early in the afternoon of 25 October 2013 that the matter could not be resolved without the Court of Appeal convening, as a result of which the Registrar sought and obtained clarification that the orders proposed by the respondents were to be made by consent, following which the listing was vacated. 3A single Judge of Appeal has power to give any judgment by consent or to make any order by consent, and if so, the judgment or order is to have effect as a judgment or order of the Court of Appeal: Supreme Court Act 1970, s 46(1)(a) and (5). Accordingly, by consent I make the orders in the terms proposed by the respondents. I confirm that I am satisfied that each of the errors conceded by the respondents amounts to appellable error: see John Lysaght Australia Ltd v Butfield [1995] NSWCA 221, where Mahoney JA noted that the prima facie duty of this Court is to reconsider the matter itself, and that the Court is not bound to make orders by consent allowing an appeal. 4There were two bases on which the primary judge dismissed the proceedings. Each was sufficient to support the orders made, and so it is necessary for the appellant to demonstrate error in relation to both of them. The first (reasons at [364]-[392]) was that following Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, the Land and Environment Court lacked jurisdiction to hear a notice of motion to set aside orders made by consent but which were said to have been procured by fraud. The respondent is correct to concede that Kirk does not deny jurisdiction; its confirmation of an entrenched supervisory jurisdiction in the Supreme Court does not detract from the existing jurisdiction of other superior courts to set aside even perfected orders in limited circumstances. The second (reasons at [393]-[402]) was the acceptance of a no case submission, but such a submission needs to be put at the conclusion of the appellant's case, rather than before the appellant's evidence has been adduced. 5That I am satisfied of appellable error warranting those orders will come as no surprise to either party. At the hearing of the application for leave on 22 August, the Court made it clear that it did not need to hear counsel for the applicant on the question of jurisdiction, and that there were difficulties in relation to the no case submission. 6Especially given the further hearing which is to occur, it is unnecessary and inappropriate to say anything further about the substantive aspects of the dispute between the parties. It is convenient to mention the following three procedural aspects. First, one reason why the proceedings have taken the unhappy course that they have is that there has not been a clear and binding articulation of the case which the appellant wishes to establish. It is a matter for the judge who hears and determines the proceedings, but there is much to be said for a regime identifying with precision the allegations (some of which amount to fraud) sought to be made and established, without which the full extent of the issues to be proved may be unclear (cf Cameron v Qantas Airways Ltd [2009] NSWCA 339 at [16]), and it may be noted that at the hearing of the application for leave, when this was raised, counsel for the applicant said that he was "ready, willing and able to do that": T 10.1. 7Secondly, this Court was told at the same time that the applicant's solicitor had sworn a number of affidavits and it was proposed that he be cross-examined at length. A solicitor for an applicant who is a witness of fact can easily find himself or herself subject to conflicting obligations including under rule 19 of the Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules): see for example Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561 at [77]-[96], and it is as well if that has not already been considered for the parties to do so promptly. (I am unaware of what has been deposed to, and whether appropriate steps addressing this issue are already in place; I mention it only out of an abundance of caution.) 8Thirdly, the appellant has commenced separate proceedings in this Court pursuant to s 69 of the Supreme Court Act. The appellant's email to the Registrar of 5.08pm, 25 October 2013 proposes that that proceeding be remitted to the Land and Environment Court. It is not at present clear whether the respondents consent to or oppose that course; prima facie it seems sensible so that the same judge can deal with all of relevant processes invoked by the appellant. 9Accordingly, in addition to making the orders referred to above, I direct the parties to bring in within seven days agreed short minutes of order dealing with proceeding 2013/46329, or alternatively within that time to serve and supply to my Associate proposed orders accompanied by short submissions as to the future conduct of that proceeding. If either party wishes to be heard orally in relation to that proceeding, that fact and the reasons why to do so is consistent with s 56 of the Civil Procedure Act 2005 should be contained in the written submission. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2013