Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Norris v Routley [2016] NSWCA 212 Hearing dates: 11 August 2016 Date of orders: 11 August 2016 Decision date: 11 August 2016 Before: Payne JA Decision: (1) Vacate notations 1 and 2 in the orders made on 6 June 2016. (2) Vacate order 10 in the orders made on 6 June 2016. (3) Fix the matter for hearing before this Court on 6 September 2016 with a one day estimate. Catchwords: PRACTICE AND PROCEDURE - motion to lead further or fresh evidence Category: Procedural and other rulings Parties: Mary Norris (Appellant) Douglas Routley (Respondent) Representation: Counsel: S Holmes (Appellant) Solicitors: Toby Tancred (Appellant) Avant Law (Respondent) File Number(s): 2016/66704 Decision under appeal Court or tribunal: NSW Supreme Court Jurisdiction: Common Law Citation: [2015] NSWSC 883 Date of Decision: 11 December 2015 Before: Harrison J File Number(s): 2013/111968 [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.] Ex tempore judgment [Amended in accordance with the principles stated in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194].] 1. On 6 June 2016 this matter was before the Court for directions. Since that time the parties filed submissions in the proceedings. The Court has had an opportunity to consider those submissions and it has become apparent that there is an issue with notations 1 and 2 to the orders made on 6 June. 2. In particular, it appears that, although expressed as notations of agreement between the parties, the effect of those notations would be to bind the Court hearing the appeal. 3. Ordinarily, of course, a motion to lead further or fresh evidence is determined at the appeal. If the motion is successful, the Court can simply decide the appeal on that basis and take into account the further or fresh evidence. The Court can in some cases permit the filing of further or fresh evidence by the respondent, or can remit the matter to the primary judge, having determined that the evidence should be admitted. 4. It appears to me, having considered the written submissions, that the effect of the notations is to limit the usual discretion of the Court hearing the appeal to take only one of those courses. It was not my intention, in noting those matters, to limit the Court's discretion, and for those reasons I vacate notations 1 and 2 in the orders I made on 6 June 2016. 5. I have raised with the parties the question of whether, given the prospect that the Court may admit the further evidence, not permit the respondent to file further evidence and determine to allow the appeal, it would be appropriate now to adjourn the matter to dates in October and make orders permitting the respondent, if so advised, to file further evidence. 6. Mr Blandford, who appears today for the respondent, has submitted that the preferable course would be to take the date of 6 September 2016. That date is available to the parties and the Court. Of course, Mr Blandford and his client, should the evidence be admitted, are free to make whatever submissions are appropriate about what should happen with the matter, whether by way of further evidence, remitter, or some other course. 7. In those circumstances, I vacate order 10 made by me on 6 June 2016 and I fix the matter for hearing, with a one-day estimate, before this Court on 6 September 2016. Orders 1. I make the following orders: 1. Vacate notations 1 and 2 in the orders made on 6 June 2016. 2. Vacate order 10 in the orders made on 6 June 2016. 3. Fix the matter for hearing before this Court on 6 September 2016 with a one day estimate. ********** Amendments 15 August 2016 - 'Decision date' changed to 11 August 2016 15 August 2016 - Representation changed 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: 15 August 2016