Hassan v Sydney Local Health District (No 3)

THE COURT: In Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356, the Court had before it prayers 7 and 8 of a notice of motion which had been filed by Ms Hassan on 7 September 2020, the other prayers for relief having been struck out by the Registrar of the Court of Appeal: see at [9]ff.

Prayers 7 and 8 sought to set aside or vary a judgment which had been given by Gleeson JA relating to the issue of subpoenas in respect of Ms Hassan’s separately filed Notice of Appeal from a series of decisions of Fagan J in the Common Law Division.

The notice of motion was dealt with in Bell P’s reasons at [17]–[25].

In [25] of those reasons, the President observed that the power invoked in Ms Hassan’s notice of motion to discharge or vary Gleeson JA’s judgment was conferred by s 46(5) of the Supreme Court Act 1970 (NSW) and that this was “a broad discretionary power subject to similar, but not lesser, constraints than those governing the grant of leave to appeal”.

Having referred to a series of cases setting out criteria governing leave to appeal, Bell P then noted in [26] that:

The reference to “the application for leave to appeal” in that sentence was an error. As was and is plain from the balance of the reasons, the sentence should have stated “the notice of motion should be dismissed with costs” and the formal order made should have been to that effect.

The Court has power, of its own motion, to correct accidental slips and clerical mistakes of this kind: see R v Green and Quinn [2011] NSWCCA 71; Allen v R (No 2) [2020] NSWCCA 196; and see Uniform Civil Procedure Rules 2005 (NSW) r 36.17.

Accordingly, the following order should now be made: