State of New South Wales v Dargin [2019] NSWCA 47

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Dargin [2019] NSWCA 47 Hearing dates: 29 January 2019 (last submissions 18 February 2019) Decision date: 14 March 2019 Before: Basten JA at [1]; Leeming JA at [2]; Sackville AJA at [50] Decision: 1. Refuse leave to amend the proposed draft notice of appeal.

2. Grant leave to appeal in terms of the draft notice of appeal dated 10 December 2018 from the judgment and orders made in the District Court.

3. Direct the State to file within seven days a notice of appeal in the terms of the draft notice of appeal, and otherwise dispense with the rules as to service.

4. Appeal allowed.

5. Set aside the "Judgment for the Plaintiff" and the order that the defendant pay the plaintiffs' costs made on 4 December 2018, and in lieu thereof, answer the separate question "It is inappropriate to answer this question".

6. Remit the matter for trial in the District Court.

7. The State to pay the respondents' costs in this Court as agreed or assessed, such costs to include the application for leave.

8. Note that there be no order as to the costs of the separate question before the District Court, with the intent that the parties bear their own costs. Catchwords: PROCEDURE – separate question – terms of question unclear on their face – terms of question uncertain and disputed by parties – hearing of separate question conducted without evidence or agreed facts – whether question appropriate to answer – whether different question should be determined on appeal Legislation Cited: Bail Act 1978 (NSW), ss 37AA, 50 Bail Act 2013 (NSW), ss 30, 77, Sch 3 item 3(2) Crimes Act 1900 (NSW), ss 117, 195(1)(b) Law Reform (Vicarious Liability) Act 1983 (NSW), s 9B Police Act 1990 (NSW), s 6(1) Cases Cited: Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80 Johnson v Phillips [1975] 3 All ER 682 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Lawson v Dunlevy [2012] NSWSC 48 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 Mehmet v Carter [2018] NSWCA 305 Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 Category: Principal judgment Parties: State of New South Wales (Applicant) Travis Dargin (First Respondent) Kristy Green (Second Respondent) Representation: Counsel: D M J Bennett AC QC, M Hutchings and N D Oreb (Applicant) G A Bashir SC, N Kirby and B K Lim (Respondents)