PERISH v C AND M MICALEFF [1988] NSWCA 112

PERISH v C & M MICALEFF

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, SAMUELS and MCHUGH JJA 9 August 1988, 9 August 1988

[1988] NSWCA 112

KEY WORDS: DISTRICT COURT — PRACTICE — PREROGATIVE WRITS — WORDS & PHRASES DISTRICT COURT — statutory appeal to District Court from Poultry Farmers' Licensing Committee — poultry farmer's licence cancelled for non compliance with condition limiting hen numbers — non compliance not denied — appeal to District Court — claim for order for inspection of another poultry farmer's property — District Court judge refuses to make order — summons for leave to appeal to Court of Appeal — held: No appeal lies (1) Decision is not a "ruling, order, direction or decision" in an action as provided by s128(2A) District Court Act 1973. Fraser Credits Pty Limited v Osterberg-Olsen [1978] 1 NSWLR 121 applied; (2) Semble The proceedings on a statutory appeal are not an "action". Hudson v South Sydney Municipal Council (1981) 46 LGRA 128. Summons for leave to appeal therefore dismissed with costs. PRACTICE — District Court — order for inspection of property — whether extends to inspection of property of non parties — whether available in statutory appeal to District Court under Egg Industry Act 1983, s38 — whether "in an action" — observations of Kirby P and McHugh JA raising doubts about the validity of the Rule if it purports to apply to non parties (McHugh JA) and about its application to such an appeal (Kirby P) — Observations on the need, if the Rule is valid and applies, to exercise the discretion provided by it with due regard to the privacy and other rights of the subject and to the issues in controversy in the proceedings before the District Court. PREROGATIVE WRITS — Purported appeal from District Court — no appeal lies — whether prerogative relief available Glenvill Homes Pty Ltd v Builders Licensing Board [1981] 2 NSWLR 608; Coles & Ors v Burke & Anor (1987) 10 NSWLR 429 considered — Unrepresented litigant challenge to validity of Cancellation of Poultry farmer's licence — whether tainted by fraud held: (1) No jurisdictional error of law on the part of trial judge shown; (2) Accordingly, no reason to allow adjournment to permit enlargement of relief claimed in summons. WORDS & PHRASES — "action". Common Law Procedure Act 1899, $104 District Court Act, 1973, s128(2A), s161. Egg Industry Act, 1983, s37, s38. Supreme Court Rules, Pt25, Rule 8. District Court Rules, Pt22, Rule 7.