Penson v Titan National Pty Ltd (No 2)

[2015] NSWCA 197

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside or varying judgments
4. › Application to set aside judgment dismissing leave to appeal
5. › Whether applicant deprived of natural justice by counsel's conduct
6. › Whether re-agitation of arguments already considered
7. › Uniform Civil Procedure Rules 2005 (NSW), r 36.16
1. Practice and Procedure
2. › Judgments and orders
3. › Finality of litigation
4. › Power to reopen exercised with great caution
5. › Not to be used as backdoor method to reargue cases
1. Legal Profession
2. › Barristers
3. › Duty to the court
4. › Obligation to draw attention to authority adverse to client's case
5. › Whether counsel acted improperly
1. Practice and Procedure
2. › Costs
3. › Lump sum costs orders
4. › General rule that costs follow the event
5. › Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Quick Take

A party's dissatisfaction with the manner in which their counsel conducted proceedings does not constitute a denial of natural justice or a basis for setting aside a judgment under UCPR r 36.16. Counsel's duty to draw adverse authority to the court's attention, even where it is determinative against the client's case, is not improper conduct. An application to set aside a judgment that amounts to re-agitation of arguments already considered will be dismissed as inimical to the principle of finality of litigation.