JUDGMENT AND ORDERS — amending, varying and setting aside — Court of Appeal — application to set aside and vary orders under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) — whether judgment affected by misapprehensions — no basis for reopening and setting aside the earlier decision — application dismissed
COSTS — gross sum costs order — where applicant opposes gross sum costs order — gross sum costs order appropriate in the circumstances
Quick Take
1The jurisdiction under UCPR r 36.16 to reopen a judgment requires demonstration of error in the court's reasoning due to a misapprehension of fact or law; it is not a mechanism for re-agitating arguments already considered or for challenging the outcome of a decision.
2An alleged error of law by a primary judge — such as misapplying or 'volunteering' an authority — does not of itself evidence actual bias or raise a reasonable argument of actual bias; what must be shown is that the judge was so committed to a conclusion already formed as to be incapable of alteration.
3Impecuniosity of an unsuccessful party is not a basis for departing from the usual costs rule but is a relevant consideration favouring the making of a gross sum costs order to avoid the disproportionate expense of a formal assessment process.
