Martin v NSW (No 13)

[2011] NSWCA 296

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Civil appeal
3. › Parties to appeal
4. › Respondent not a party below
5. › Whether directly affected by relief sought
6. › Whether maintaining decision below
7. › Removal from proceedings
8. › Uniform Civil Procedure Rules 2005 (NSW), r 51.4
1. Appeal
2. › Civil appeal
3. › Appellate jurisdiction
4. › Damages sought on appeal
5. › Whether within appellate jurisdiction to award damages against non-party below
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Abuse of process
5. › Whether indemnity costs appropriate where appellant not warned of abuse of process

Quick Take

A party named as a respondent on appeal who was not a party to the proceedings below and is not directly affected by the relief sought is entitled to be removed under UCPR r 51.4. An appellate court cannot award damages against a party who was not a respondent below. Indemnity costs for abuse of process may not be awarded where the appellant was not warned of the abuse before the application for indemnity costs was made.