Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, KIRBY, HAYNE AND CALLINAN JJ

ARMIN HERBERT GERLACH APPELLANT

AND

CLIFTON BRICKS PTY LIMITED RESPONDENT

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22

30 May 2002

S43/2001

ORDER

1. Appeal allowed with costs. 2. The orders of the Court of Appeal of the Supreme Court of New South Wales made on 28 April 2000 be set aside. 3. The matter be remitted to that Court to hear and determine the grounds of appeal other than those seeking to challenge the order dispensing with a jury. 4. The costs of the appeal to the Court of Appeal to be in the discretion of that Court.

On appeal from the Supreme Court of New South Wales

Representation:

J M Ireland QC with J F Burn for the appellant (instructed by Gary Robb & Associates)

B W Rayment QC with A R Ashburner for the respondent (instructed by Hunt & Hunt)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Gerlach v Clifton Bricks Pty Ltd

Appeals – Interlocutory orders – Interlocutory order dispensing with a jury in the trial of a civil matter – Leave to appeal against interlocutory order not sought – Action tried by judge alone – Later appeal against both final judgment and order to dispense with a jury – Whether order to dispense with a jury gave rise to a substantial wrong or miscarriage warranting an order for a new trial.

Practice and procedure – Interlocutory order – Entitlement of disaffected party to save up challenge as ground of appeal against final judgment.

Courts – Statutory conferral of discretionary powers – Need to exercise powers in accordance with the statutory grant – Need to afford liberal construction to powers conferred on courts.

Words and phrases – "substantial wrong or miscarriage".

District Court Act 1973 (NSW), s 79A.