SPAUTZ v UNIVERSITY OF NEWCASTLE [ORDER] [1991] NSWCA 252

SPAUTZ v UNIVERSITY OF NEWCASTLE [ORDER] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY JA

22 July 1991

[1991] NSWCA 252

Handley JA Dr. Spautz has moved on a notice of motion seeking in substance an order for a new trial of proceedings which were heard and disposed by Mr. Justice Rolfe in the Equity Division earlier this year. Dr. Spautz has lodged an appeal as of right against the judgment of Rolfe J disposing of those proceedings That appeal was lodged within time and is still pending.

In my opinion the notice of motion seeks to separate out for separate decision of this Court a number of the issues which would necessarily arise on the hearing of the appeal. Doctor Spautz has provided me with a 12-page written submission indicating the nature of the matters which he would propose to argue on the hearing of the present motion. A preliminary consideration of those written submissions has only confirmed my initial view that this motion was an attempt to persuade this Court to dispose of the appeal proceedings from Rolfe J in separate hearings rather than to have a single hearing which could dispose of all issues.

In the circumstances I am not prepared to make any order in the notice of motion other than the order that it be adjourned until the hearing of the appeal and be listed with the appeal in due course.

It may be that Dr. Spautz is entitled to some expedition in relation to the appeal from Rolfe J. I express no opinion on that question but in my opinion it would be no solution to the problems of delay to which Dr. Spautz has referred for this Court to undertake a separate hearing and determination of the present motion apart from the appeal In all the circumstances I propose to make an order that the costs of the University for today be its costs of the motion.