HASSIB NJJAR (T/A CEDAR MANAGEMENT) v THE MINISTER FOR PUBLIC WORKS STATE OFFICE BLOCK [1990] NSWCA 86

HASSIB NJJAR (T/A CEDAR MANAGEMENT) v THE MINISTER FOR PUBLIC WORKS STATE OFFICE BLOCK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 3 December 1990

[1990] NSWCA 86

Handley JA In this matter MrEinfeld of Queens Counsel moves for orders extending the time for filing a notice of appeal, for leave to adduce fresh evidence, for leave to add Mr Ernest Edward Morris as a respondent to the proceedings, for a stay of execution and for expedition. The case is unfortunately complicated as a matter of procedure and there are significant difficulties in the case so far as the ultimate merits are concerned.

On 12 February 1990 Giles J adopted the report of Mr EA Morris who had heard and determined a reference pursuant to Pt72 of the rules of court in a matter in the Construction List. Following publication of his honour's reasons for judgment on 12 February, final orders were made on 16 February entering judgment in favour of the nominal defendant for $25,000 plus interest of $4,548.62 together with costs, including the remuneration of the referee and the costs of the transcript of evidence.

The unsuccessful plaintiff in the proceedings in the Construction List filed a Notice of Appeal in this Court out of time on 3 July 1990, well out of time. One of the orders sought is an order extending the time for filing that Notice of Appeal. The only ground on which the appellant proposes to support that appeal relates to the existence of actual or ostensible bias on the part of the referee which was not known to the appellant at any material time and which it is said vitiates the report and should lead to the reversal of Giles J's decision adopting that report. This ground of appeal is necessarily dependent upon the Court receiving and acting on what is alleged to be fresh evidence relating to the allegations of bias, because it is clear that this matter was neither raised before the referee during the reference, nor before Giles J in the proceedings in February this year to adopt the report.