QANTAS AIRWAYS LIMITED v DILLINGHAM CORPORATION [1988] NSWCA 122

QANTAS AIRWAYS LIMITED v DILLINGHAM CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirByY P, MCHUGH and CLARKE JJA 15 April, 20 May 1988, 25 August 1988

[1988] NSWCA 122

KEY WORDS: JURY — SUB-ORDINATE LEGISLATION — STATUTES — PRACTICE — ARBITRATION — WORDS & PHRASES "cases" JURY — order for trial without a jury — allegations of fraud — large number of documents — primary judge finds that case is complex and (by inference) could not conveniently be conducted with a jury — refers to "luxury" of jury trial and to effect of a prolonged trial on other litigants awaiting trial — whether reasons for exercise of discretion to dispense with jury displayed error warranting disturbance by the Court of Appeal — held: (1)(By the Court) No error shown; — it was open to the trial judge to conclude as he did (2)(per McHugh JA; Clarke JA concurring) Even if error was shown the Court of Appeal should make the same order in the circumstances. The Pambula District Hospital vy Herriman, unreported, CA 5 August 1988 distinguished by Kirby P; The Nominal Defendant vy Cameron & Ors, unreported, CA, 2 August 1988 referred to.

SUBORDINATE LEGISLATION Supreme Court Rules — validity of — provision for reference of proceedings to arbitration — Rules provide for any Proceedings in the Court to be referred but not any question to be tried with a jury — whether the Rule is valid within s124(2) of the Supreme Court Act 1970 providing for making rules with respect to "cases" in which the whole of any proceedings etc may be referred held: Rule valid — challenge to reference to arbitration rejected Baker v Gough & Ors (1964) 80 WN (NSW) 1263 distinguished.

STATUTES — construction validity of Rules of Court — whether within rule making power — reference by McHugh JA (Kirby P and Clarke JA concurring) to second Reading Speech and explanatory memorandum — reference to general power to refer to arbitration as contemplated by Parliament.