State of New South Wales v Nash [2016] NSWCA 98

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Nash [2016] NSWCA 98 Hearing dates: 2 May 2016 Decision date: 06 May 2016 Before: Barrett AJA Decision: 1. Rule that the court attendance notices and facts sheets which are annexures B and C to the affidavit of Belinda Michalk of 19 paragraphs affirmed 26 February 2016 are admitted upon the hearing of the notices of motion heard by me on 2 May 2016. 2. Order that the use that may be made of the said court attendance notices and facts sheets is limited to proof of steps (which may or may not be legally effective steps) that have been taken to institute criminal prosecutions against the respondent on the basis of the untested allegations appearing from the documents. 3. Rule that the witness statement which is annexure A to the affidavit of Belinda Michalk of 14 paragraphs affirmed 26 February 2016 is admitted upon the hearing of the notices of motion heard by me on 2 May 2016. 4. Order that the use that may be made of the said witness statement is limited to proof of what the maker of the witness statement has expressed a willingness to say in evidence. 5. Order that the claims in prayers 3 and 4 of the appellant's notice of motion filed on 26 February 2016 be dismissed. 6. Order that the claims in the amended notice of motion filed by the respondent seeking an order that the notice of appeal filed on 6 November 2015 be dismissed be themselves dismissed. 7. Make no order as to costs of and incidental to the notices of motion to the intent that each party should bear its or his own costs. Catchwords: APPEAL AND NEW TRIAL – grounds of appeal – whether formulated with sufficient specificity – grounds of appeal – whether appellant should be allowed to add grounds that judgment below procured by fraud – where fraud not admitted – whether new evidence upon which appellant would seek to rely is incontrovertible – held not appropriate for question of fraud to be tried by appellate court Legislation Cited: Civil Procedure Act 2005 (NSW) pt 6, div 1 Crimes Act 1900 (NSW) s 338 Evidence Act 1995 (NSW) ss 55, 59, 75, 135, 136 Uniform Civil Procedure Rules 2005 (NSW) rr 51.18, 51.34, 51.38 Cases Cited: Bishop v Chhokar [2015] EWCA Civ 24 (30 January 2015) Cabassi v Vila [1940] HCA 41; 64 CLR 130 Durham v Durham [2011] NSWCA 62 Gann v Hosny [2015] VSCA 43 (16 March 2015) Hip Foong Hong v H Neotia & Co [1918] AC 888 Jonesco v Beard [1930] AC 298 Ladd v Marshall [1954] 1 WLR 1489; 3 All ER 745 McDonald v McDonald [1965] HCA 45; 113 CLR 529 Noble v Owens [2010] EWCA Civ 224; 1 WLR 2491 Permanent Trustee Australia Ltd v FAI Insurance Co Ltd (in liq) [2003] HCA 25; 214 CLR 514 Sansom v Sansom [1956] 1 WLR 945 Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121; 207 FCR 390 Southend-on-Sea Borough Council v Armour [2014] EWCA Civ 231 (12 March 2014) Toubia v Schwenke [2002] NSWCA 34 ; 54 NSWLR 46 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Zagarac v Dellios [2007] FCAFC 58 Category: Procedural and other rulings Parties: State of New South Wales (Appellant) Bernard Andrew Nash (Respondent) Representation: Counsel: Ms S Pritchard SC / Mr M Hutchings (Applicant) Mr R McIlwaine SC / Mr R Quickenden (Respondent)