SHEEHAN v McDONELL [No 2] [1992] NSWCA 228

SHEEHAN v McDONELL [No 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, CLARKE and CRIPPS JJA 1 June 1992, 21 August 1992

[1992] NSWCA 228

JURY — RIGHT TO TRIAL BY JURY — defendant within time requisitions jury and pays fee — in default of appearance of defendant's counsel, Lloyd-Jones DCJ dispenses with the jury and enters judgment for plaintiffs — motion for setting aside the judgment succeeds before Garling A-DCJ — but order dispensing with jury not set aside — purported appeal as of right to Court of Appeal — later motion for extension of time to seek leave to appeal pursuant to District Court Act 1973, s128(A) — summons for leave to appeal heard as an appeal — proceedings returned to Garling DCJ to decide whether to correct earlier orders under slip rule — later order dispensing with jury corrected under slip rule — HELD: Summons for leave to appeal dismissed — all costs to abide outcome of trial.

INFERIOR COURTS AND TRIBUNALS — District Court — judgment set aside — order dispensing with jury not set aside complaint that Judge made such order without (a) affording defence right to be heard and (b) providing reasons — matter remitted to Judge to correct order under slip rule. NATURAL JUSTICE AND PROCEDURAL FAIRNESS — judgment entered in default of appearance — excuse for non appearance proved and defence on merits shown — District Court judge set aside default judgment — defendant seeks jury trial — plaintiffs will not consent to restore jury -application to Court of Appeal — proceedings remitted to District Court Judge to consider the correction of orders under Slip Rule — orders corrected — summons for leave to appeal dismissed as unnecessary.

COSTS — occasioned by barrister — barrister fails to appear on District Court motion — fails to notify opponent of late arrival — telephones the Judge's Associate — matter dealt with in his absence consequential need for motion, summons and appeal to Court of Appeal — HELD: But for the absence of the barrister from the proceedings, the Court would have called on him to show cause why he personally should not pay the costs which had ensued. Regina v Secretary of State for the Home Department; Ex parte Abbassi, Times Law Reports, 6 April 1992, referred to.