State of New South Wales v Williams [2014] NSWCA 177

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Williams [2014] NSWCA 177 Hearing dates: 29/04/2014 Decision date: 05 June 2014 Before: Macfarlan JA at [1]; Emmett JA at [2]; Simpson J at [75] Decision: 1 Leave be granted to the applicant to appeal from the orders made by the District Court on 2 October 2013; 2 The applicant be directed to file, within seven days, a notice of appeal in the form of the draft notice of appeal; 3 The appeal be allowed; 4 The orders made by the District Court on 2 October 2013 be set aside and, in lieu of those orders, there be an order that the respondents' notice of motion of 5 July 2013 be dismissed with costs; 5 The respondents pay the applicant's costs of the application for leave to appeal and of the appeal; 6 The respondents, if otherwise qualified, have certificates under the Suitors' Fund Act 1951 (NSW). [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: PROCEDURE - striking out of paragraphs in defence - whether the matter asserted in those paragraphs had been conceded in earlier criminal proceedings - whether there had been a trial on the facts in respect of the matter - whether it would be an abuse of process to persist in asserting the matter Legislation Cited: Crimes Act 1900 (NSW), s 546C Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53, 55 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 11 Criminal Procedure Act 1986 (NSW), ss 3, 175 Crown Proceedings Act 1988 (NSW), s 5 Director of Public Prosecutions Act 1986 (NSW), s 9 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 Law Reform (Vicarious Liability) Act 1983 (NSW), s 9B Uniform Civil Procedure Rules 2005 (NSW), r 14.28 Cases Cited: Cleary v Jeans [2006] NSWCA 9; 65 NSWLR 355 Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 268 Munday v Gill [1930] HCA 20; 44 CLR 38 Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49 O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 Williams v Director of Public Prosecutions (NSW) [2011] NSWSC 1085 Texts Cited: KR Handley, Res Judicata (4th ed 2009, Butterworths) Category: Principal judgment Parties: State of New South Wales (Applicant) Joel Williams (First Respondent) Gloria Williams (Second Respondent) Robert Williams (Third Respondent) Representation: Counsel: J Maconachie QC with M Spartalis T Molomby SC with B Cochrane Solicitors: Makinson d'Apice Lawyers (Applicant) Randall Legal (First - Third Respondents) File Number(s): 2013/304647 Publication restriction: Nil Decision under appeal Citation: Joel Nathan Williams, Gloria May Williams, Robert Lee Anthony Williams v The State of New South Wales [2013] NSWDC 249 Date of Decision: 2013-10-02 00:00:00 Before: Finnane QC DCJ File Number(s): 2012/371401