ANDREW WILLIAM MORISON v STATE TRANSIT AUTHORITY OF NEW SOUTH WALES [1990] NSWCA 127

ANDREW WILLIAM MORISON v STATE TRANSIT AUTHORITY OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MEAGHER JJA 3 December 1990, 3 December 1990 [1990] NSWCA 127

PRACTICE and PROCEDURE — Court of Appeal — application for discharge of order of single Judge of Appeal sitting alone under s46 Supreme Court Act — necessary to show that order made was wrong — unrepresented litigant — order that appeal be dismissed as frivolous or vexatious — serious step to dismiss claim without hearing on merit — application to bring fresh evidence including from Prime Minister — held: (1) No error having been shown in the order made application to discharge it dismissed; (2) Application to call fresh evidence dismissed as ancillary to such appeal. Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 referred to. Supreme Court Act 1970, s46.

Kirby P Before the Court is a motion. It seeks in substance two forms of relief. The first is an order from the Court as presently constituted discharging or varying a judgment earlier given by a Judge of Appeal sitting alone. Clarke JA for reasons stated by him on 29 October 1990 dismissed the claimant's appeal. The claimant wishes to challenge that order. The second is that part of the motion by which the claimant seeks leave to produce fresh evidence.

So far as the motion for an order for discharge of the earlier order of Clarke JA is concerned, the power of the Court to discharge the order made by a single Judge of Appeal exercising the powers of the Court under s46 of the Supreme Court Act 1970 cannot be doubted. It is provided by the terms of s46(4) of the Act. However, it would seem to me that it is necessary for the applicant for an order of discharge to show some error of the part of the judge sitting alone to warrant the relief sought.