David Anthony McCARTHY v LAW SOCIETY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MEAGHER JJA 3 June 1991 [1991] NSWCA 194 Mahoney JA This application comes before the Court in the context of an appealwhich has been brought against orders made by the Statutory Committee on, it would appear, 6 December 1990. The appeal has been brought against those orders by a document described as a summons bearing date 21 January 1991. Mr McCarthy, the appellant in the matter, has moved the court on motion for orders, the principal one of which is that the matter stand out of the list for a period of six months. The basis of the application - as appearing from the affidavit which has been filed in the matter - essentially is that there are criminal proceedings now pending, criminal proceedings in respect of which - as I understand - Mr McCarthy has been committed for trial in relation to some, but not all, of the matters relied upon by the Statutory Committee in making the orders against Mr McCarthy that it did. Those orders involve that he be struck off the Roll of Solicitors. The essential problem arises because of the pendency of the criminal proceedings. Mr Garling, for the Law Society, has opposed the application that the matter stand out of the list generally. He has indicated that subsequently if and when the matter of the appeal is ready for hearing by this Court the Law Society would consider its position again in relation to any application for further adjournment by reason of the pendency of the criminal proceedings. There is substance in the contention that there would be embarrassment if the criminal proceedings are apt to involve matters in respect of which Mr McCarthy, if the appeal proceeds first, would want to give evidence before this Court there is substance in the contention that they may involve him in unacceptable embarrassment. On the other hand, it is inappropriate that the preparation of the material for the present appeal should be delayed unnecessarily. In the circumstances, in my opinion, the proper order to be made is that the present application, that is the Notice of Motion, should stand over. The contemplation would be that the preparation of the appeal papers would then proceed in the ordinary course. Iam appreciative of the fact that Mr McCarthy has indicated that he may make an application for, as he describes it, a complete rehearing of the matter but, without binding the court to which any such application ultimately may come, it does not appear to me that that possibility precludes or makes inappropriate the preparation of the appeal papers at the present time. In my opinion, the ordinary procedures in relation to the preparation of the appeal papers should go forward. If there were any delay in that matter by Mr McCarthy - and I do not, of course, 2 UNREPORTED JUDGMENTS suggest there would be then, of course, it would be open to the Law Society to make such application to this Court by way of striking out the appeal, or otherwise, as might be appropriate. In my opinion, the proper course to be followed would be that the preparation of the appeal papers proceed, that the Notice of Motion stand over to an appropriate date and when, in the ordinary course, the appeal with the papers having been prepared, would be apt to come on for hearing, then the position can be reviewed and, if necessary, the application upon the Notice of Motion can be dealt with. It would be appropriate, in my opinion, to reserve the costs of the motion to date; this could be dealt with at the time when the motion was proposed to be dealt with. The position then is one would have to fix a date for the adjournment of the Notice of Motion. It is undesirable that a Notice of Motion stand in limbo. The Notice of Motion will stand over to 9 December 1991, liberty to either party to restore on two days' notice, costs to date reserved. Priestley JA I agree. Meagher JA I also agree. The Notice of Motion will stand over to 9 December 1991, liberty to either party to restore on two days' notice, costs to date reserved.