ANKA JOHNSON v INGHAMS ENTERPRISES PTY LTD [1989] NSWCA 4

ANKA JOHNSON v INGHAMS ENTERPRISES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 5 June 1989

[1989] NSWCA 4

Mahoney JA This proceeding comes before the Court on an application by the defendant to secure that the proceeding be tried by a jury. In order to understand its submissions and to deal with them, it is necessary to refer, I trust briefly, to the background against which the present application is made.

The proceeding has had a long history. It was commenced on 16 December 1983 by a statement of claim filed in the District Court. The proceeding apparently took a leisurely course; at least it took some time. There was involved, inter alia, an application by the defendant to secure a hearing by a jury if the proceeding was to be heard in the District Court.

In the event, and having regard to the way the matter has been conducted before this Court, it is not necessary to refer in detail to what was there done or to consider whether it was correct.

However, in October 1986 the proceedings were ordered to be brought into this Court. The order was, the Court has been informed, made under the District Court Act s145. It was made upon summons taken out in accordance with Pt74 12.

The summons was heard by Master Hogan. The orders that were sought were: that the proceedings between parties filed in the District Court at Sydney, bearing matter No 22825 of 1983 be transferred to this Court; that the pleadings therein stand as pleadings of this Court; that the costs of the summons be costs in the cause; and that the matter have such priority as it would have had had it been commenced in this Court by a statement of claim filed on 16 December 1983.

The Master's orders were: "I make orders 2-5 as in the summons filed on 10 October. And there will be an order for requisition for trial with jury in accordance with the requisition filed in court today." O.2, 0.3, O.4 and O.5 were the orders in relation to the transfer, the pleadings, the costs and the priority to which I have referred.