CRACKIN' SNACK PTY. LTD. v GAMEKING AUSTRALIA PTY LTD [2024] NSWDC 50

CRACKIN' SNACK PTY. LTD. v GAMEKING AUSTRALIA PTY LTD [2024] NSWDC 50

The stay was refused because, although the bias issue made the application close and created some awkwardness, the preferable course was for the trial judge to determine the pending motions, particularly the costs variation application that her Honour had expressly left open, rather than defer the matter to the Court of Appeal or another judge. The plaintiffs' need to raise bias before her Honour did not justify avoiding determination of the motions.

Jurisdiction
Australia
Judgment Date
13 February 2024
Procedural Posture
Civil Procedural Ruling on Notice of Motion for Stay / Plaintiffs' Notice of Motion Filed 7 February 2024 Seeking a Stay of Defendants' Notices of Motion Pending Appeal
Outcome
Notice of Motion filed 7 February 2024 dismissed.
Legal Topics
['stay Pending Appeal' 'bias Allegation Against Trial Judge' 'costs Orders' 'variation of Costs Order' 'notice to Produce']
['civil Procedure'] ['stay Pending Appeal' 'bias Allegation Against Trial Judge' 'costs Orders' 'variation of Costs Order' 'notice to Produce']

Case Brief

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Procedural Posture

Civil Procedural Ruling on Notice of Motion for Stay / Plaintiffs' Notice of Motion Filed 7 February 2024 Seeking a Stay of Defendants' Notices of Motion Pending Appeal

Legal Issues

  1. 1 ["Whether the defendants' Notices of Motion filed 3 November 2023 and 24 January 2024 should be stayed until the plaintiffs' appeal to the Court of Appeal is finalised because the plaintiffs have raised alleged bias of the trial judge." 'Whether the desirability of the trial judge determining costs and related post-judgment matters outweighed the awkwardness and inconvenience of requiring the plaintiffs to raise bias before that judge.']

Ratio Decidendi

The stay was refused because, although the bias issue made the application close and created some awkwardness, the preferable course was for the trial judge to determine the pending motions, particularly the costs variation application that her Honour had expressly left open, rather than defer the matter to the Court of Appeal or another judge. The plaintiffs' need to raise bias before her Honour did not justify avoiding determination of the motions.

Court Disposition

Notice of Motion filed 7 February 2024 dismissed.

Orders

  • ['The Notice of Motion filed 7 February 2024 is dismissed.' "The plaintiffs are to pay the defendants' costs of the Notice of Motion as agreed or assessed." 'The hearing date before Gibb DCJ of the Notices of Motion filed 3 November 2023 and 24 January 2024 of 26 February 2024 is confirmed.']