Ball v McInerney [2014] NSWCA 331

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ball v McInerney [2014] NSWCA 331 Hearing dates: 15 July 2014 Decision date: 19 September 2014 Before: Beazley P at [1]; Emmett JA at [2]; Gleeson JA at [5] Decision: (1) Grant leave to the appellants to amend the notice of appeal to add an additional ground of appeal concerning insufficiency of reasons. (2) Direct the appellants to file an amended notice of appeal within 7 days. (3) Appeal dismissed. (4) Appellants to pay the respondent's costs. [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 - Grounds - Failure to give adequate reasons - Whether reasons given failed to reach minimum acceptable level to constitute a proper exercise of judicial power APPEAL AND NEW TRIAL - Appeal - Interference with primary judge's findings of fact - Where findings are based on assessment of credit - Due weight to be given to the trial judge's advantage of seeing the witnesses give oral evidence -Principles in Fox v Percy apply - Whether primary judge's findings were inconsistent with incontrovertible facts or uncontested testimony, or were glaringly improbable or contrary to compelling inferences JUDICIAL REVIEW - Grounds of review - Procedural fairness - Bias - Apprehended bias - Whether primary judge impermissibly and excessively interfered with the appellants' cross-examination - Whether primary judge's conduct as a whole indicated apprehended bias - Where a party fails to object at trial - Waiver of objection JUDICIAL REVIEW - Grounds of review - Procedural fairness - Where appellant seeks a new trial - Whether some substantial wrong or miscarriage has been occasioned - Whether primary judge erred in permitting respondent to rely on an issue not pleaded in the defence - Where issue has been particularised in a Scott Schedule prior to trial Legislation Cited: Supreme Court Act 1970 (NSW) s 75A Uniform Civil Procedure Rules 2005 (NSW) r 14.14, 15.2, 15.9, 51.53 Cases Cited: Adamson v Ede [2009] NSWCA 379 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Fox v Percy [2003] HCA 22; 214 CLR 118 Galea v Galea (1990) 19 NSWLR 264 John Samuel Ball & Anor v Martin McInerney t/as Wildthorn Landscapes (District Court of New South Wales, Balla DCJ, 3 May 2013, unreported) Keith v Gal [2013] NSWCA 339 Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 Mifsud v Campbell (1991) 21 NSWLR 725 Nakhl Nasr v State of New South Wales [2007] NSWCA 101 Rajski v Bainton (Court of Appeal, 6 September 1991, unreported) Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824 Tory v Megna [2007] NSWCA 13 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Category: Principal judgment Parties: John Samuel Ball (First appellant) Elizabeth Jane Carey (Second appellant) Martin McInerney t/as Wildthorn Landscapes) (Respondent) Representation: Counsel: M T McCulloch SC with V O'Halloran (Appellants) D T Miller SC with D M Macfarlane (Respondent) Solicitors: Walker Hedges & Co (Appellants) McGirr Lawyers (Respondent) File Number(s): 2013/155973 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Citation: John Samuel Ball & Anor v Martin McInerney t/as Wildthorn Landscapes (District Court of New South Wales, Balla DCJ, 3 May 2013, unreported) Date of Decision: 2013-05-03 00:00:00 Before: Balla DCJ File Number(s): 2011/411847