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Tasty Chicks PL & Ors v Chief Commissioner of State Revenue [2011] HCA 41.

[5] An "appeal" from an administrative decision to a court is the creature of statute and it confers original, not appellate, jurisdiction. Further, where a jurisdiction called an "appeal" is enlivened, it is essential to identify its nature and the duties and power of the court in the exercise of that jurisdiction.

The term "review" presents similar considerations. It takes its meaning from the context in which it appears. It may be used by the statute in question to empower decision-making by an administrative body, or to confer a species of original jurisdiction on a court. If the latter, again it will be necessary to identify the nature of the "review" and the duties and powers of the court in the exercise of that jurisdiction.

Evans v Levy [2011] NSWCA 125. Young JA, Campbell JA & Sackville AJA agreeing.

26 Although those of us who deal with these matters constantly can almost recite the words of the plurality in House v The King [1936] HCA 40; 55 CLR 499 by heart, it is useful to state the test that we must apply for the benefit of the litigants in this case. The Court of Appeal does not reverse a decision below because the majority of the judges might feel that, had they been the trial judge, they would have come to some different conclusion on the same facts. Rather, to use the language of the plurality [Starke, Dixon, Evatt and McTiernan JJ]:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

Nominal Defendant v Saleh [2011] NSWCA 16. McColl JA.

[13] The appellant's complaints must be evaluated in the context of the role of the Court on an appeal governed by s 75A of the Supreme Court Act 1970 (NSW), which is by way of rehearing. That, as Giles JA explained in a convenient analysis of the authorities, requires the Court to "conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons": Shimokawa v Lewis [2009] NSWCA 266, at [176].

Taseka v Koutabitsis & Anor [2011] NSWCA 4. Giles JA.

[4] Under s 46 of the Supreme Court Act a judge of appeal may exercise the powers of the Court of Appeal "to make any order ... in any appeal ... but not an order or direction involving the determination or decision of the appeal ...": s 46(2)(b).

In my view, this enables me to exercise the jurisdiction conferred by s 73 or otherwise existing, since in determining whether or not the appeal has been settled and making an appropriate order I will be making an order in the appeal but not one involving its determination or decision.

I will not be determining or deciding the appeal, but simply determining whether or not the parties have resolved the appeal by their settlement.

[5] If that be wrong however, I have indicated to the parties that I am prepared to and regard myself as sitting as a Divisional judge, and in global fashion I would direct that all requirements of the Supreme Court Act 1970 and the Rules be dispensed with so far as necessary to enable me to do so without the proceedings actually being transferred to the Equity Division and reformulated so as to have a procedural basis other than the notice of motion filed in the appeal.

Cameron v Qantas Airways [2008] NSWCA 275. Hodgson JA.

[3] Section 127(2)(e) of the District Court Act does provide that an appeal to the Supreme Court lies, with leave only, from an order made with the consent of the parties.

However, none of the matters raised by the applicant could justify the setting aside by an appellate court of the consent orders made in this case.

The one matter that might possibly justify setting aside the consent orders is the allegation that the consent was the result of undue influence, or perhaps other unfair conduct or pressure brought to bear on her.

However, if that allegation were to be pressed, it would have to be in proceedings brought before a single judge in a position to hear evidence and make a decision as to whether a claim that the settlement should be set aside is made out.

The need for proceedings of that kind in this sort of case is referred to in the case of Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691.

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