State of New South Wales v Dargin [2019] NSWCA 47

State of New South Wales v Dargin [2019] NSWCA 47

The separate question was inappropriate to answer because it was poorly framed, uncertain on its face, disputed in meaning, capable of answers extending beyond the pleaded facts, and was determined without relevant evidence or agreed facts despite the factual nature of the controversy. The primary judge's answer and consequential judgment therefore could not stand, and the Court should not answer reformulated questions on appeal in the abstract.

Jurisdiction
Australia
Judgment Date
14 March 2019
Procedural Posture
Application for Leave to Appeal and Appeal From a District Court of NSW Civil Determination of a Separate Question / Court of Appeal; Leave to Appeal and Appeal Heard Concurrently
Outcome
Leave to amend refused; leave to appeal granted; appeal allowed; District Court judgment and costs order set aside; separate question answered as inappropriate to answer; matter remitted for trial.
Legal Topics
['separate Question' 'trespass to Land' 'bail Compliance Checks' 'enforcement Conditions' 'implied Licence to Enter Premises' 'police Power of Arrest']
['civil Procedure' 'torts' 'police Powers' 'bail'] ['separate Question' 'trespass to Land' 'bail Compliance Checks' 'enforcement Conditions' 'implied Licence to Enter Premises' 'police Power of Arrest']

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Procedural Posture

Application for Leave to Appeal and Appeal From a District Court of NSW Civil Determination of a Separate Question / Court of Appeal; Leave to Appeal and Appeal Heard Concurrently

Legal Issues

  1. 1 ["Whether the primary judge's answer to the separate question about bail compliance checks in the absence of a court ordered bail enforcement order should stand." 'Whether the separate question was appropriate to answer where its terms were unclear, disputed and determined without evidence or agreed facts.' 'Whether the State should be permitted to amend or reformulate the question on appeal.' 'Whether the matter should be remitted for trial in the District Court.']

Ratio Decidendi

The separate question was inappropriate to answer because it was poorly framed, uncertain on its face, disputed in meaning, capable of answers extending beyond the pleaded facts, and was determined without relevant evidence or agreed facts despite the factual nature of the controversy. The primary judge's answer and consequential judgment therefore could not stand, and the Court should not answer reformulated questions on appeal in the abstract.

Court Disposition

Leave to amend refused; leave to appeal granted; appeal allowed; District Court judgment and costs order set aside; separate question answered as inappropriate to answer; matter remitted for trial.

Orders

  • ['Refuse leave to amend the proposed draft notice of appeal.' 'Grant leave to appeal in terms of the draft notice of appeal dated 10 December 2018 from the judgment and orders made in the District Court.' 'Direct the State to file within seven days a notice of appeal in the terms of the draft notice of appeal, and...