EDELSTEN v HIS HONOUR JUDGE WARD QC [1988] NSWCA 41

EDELSTEN v HIS HONOUR JUDGE WARD QC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, Hope and SAMUELS JJA 15 November 1988, 15 November 1988

[1988] NSWCA 41

PRACTICE — stay — foreshadowed application for special leave to appeal to the High Court of Australia from an order of Court of Appeal — Court of Appeal dismissed appeal from Medical Tribunal — inutility of a stay as such — application for injunction to restrain Medical Tribunal from further hearing, pending application to High Court — whether Court of Appeal should grant injunction — Held: Application involves the protection of the public — public law invoked — provision of an interim injunction should be sought from the High Court. John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 distinguished; Sibuse Pty Ltd v Shaw (No 2), unreported, CA, 25 May 1988; (1988) NSWJB 74 followed. ORDER Motion dismissed with costs.

Kirby P Application is made to the Court for an order that the Medical Tribunal constituted under the Medical Practitioners Act 1938 be restrained for a period of 28 days from the further conduct of an inquiry into complaints against the claimant, Dr Geoffrey Edelsten.

It appears from an affidavit of Ms Meryl Shenker that, subject to the formal receipt of advice from senior counsel, the claimant proposes to apply to the High Court of Australia for special leave to appeal from the decision of this Court given on 11 November 1988. By its decision, the Court, which was then constituted by Hope, Samuels and Clarke JJA, dismissed with costs the appeal by the appellant to this Court from the Medical Tribunal. See Edelsten v Richmond and Ors, unreported, CA, 11 November 1988.

The affidavit of the claimant's solicitor indicates that enquiries have been made of the High Court registry. Advice has been received that the motion lists for 25 November 1988 and 9 December 1988 are full, save for urgent applications. The next available date for the hearing by the High Court of the claimant's summons for special leave would therefore be 17 February, 1989.