BORDER MORNING MAIL v HANSON [1988] NSWCA 18

BORDER MORNING MAIL v HANSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P

14 October 1988, 14 October 1988

[1988] NSWCA 18 PRACTICE AND PROCEDURE — Court of Appeal — remission of the

determination of questions of fact to the Common Law Division — whether appropriate — contempt proceedings — disadvantages of trial in court of Appeal referred to — absence of appeal on findings of fact, as of right — whether

appropriate to remit fact finding — possible importance of opinion as to credit of witness — significance of Parliament's assignment of contempt proceedings to the Court of Appeal — held; Matter reserved for later determination. New South Wales Bar Association v Maddocks, unreported, CA, 23 August 1988 (1988) NSWJB 143 referred to. Supreme Court Act 1970, s48(2)(i); s51(4).

ORDERS 1. I vacate the hearing of the motion for contempt before the Court of Appeal on 15, 16 and 17 November 1988. 2. I vacate the return of the motion for access to documents produced on subpoena which was listed before the Court of Appeal on 31 October 1988. 3. The summons will remain in the list of the Court of Appeal. 4. List the proceedings for mention before the Court on the first return date in 1989 to be fixed by the Registrar and notified to the parties. 5. Costs of the proceedings before the Court today to be costs in the summons.

Kirby P This matter was put in the list today for the purpose, primarily, of determining whether It should proceed to a hearing before the Court of Appeal on 15, 16 and 17 November as listed. A second question which arises if it is to proceed on those days is whether I should, in pursuance of s51(2) or s51(4) of the Supreme Court Act 1970, assign to the Common Law Division the proceedings, or a part thereof, for the determination of factual matters in the proceedings, in advance of the hearing before the Court.