RAJSKI v BAINTON [1992] NSWCA 196

RAJSKI v BAINTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and Cripps JJA 22 June 1992

[1992] NSWCA 196

Mahoney JA This is a matter that comes before the Court as the result of an order made by Kirby P, President of the Court, on 12 November 1991.

Some of the background in relation to the matter is as follows: Application was made to Clarke J in 1987, or prior to that date, in relation to existing proceedings in which the parties were concerned. His Honour dismissed the proceedings.

An appeal was brought against Clarke J's order, and on 21 December 1990 the Court of Appeal dismissed the appeal against his Honour's decision. Subsequently the Court was moved to reconsider its order, and on or about 6 September 1991 that application was dismissed.

It appears from the judgment and material before the Court that in or about October 1991 the High Court was moved for leave to appeal against the decision of the Court of Appeal. The High Court stood over that application to a date to be fixed being - and I state the matter summarily - probably not before the determination of the principal litigation. I say "probably" so as to not pre-empt any order the court might make.

On 12 November 1991 there were proceedings before the President relating to a number of matters. The President, so far as is here relevant, made an order directing that the taxation of the costs so pending in the Court of Appeal, presently set down for 14 November 1991, be stayed until further order of this Court or of a judge of appeal. The President made further orders to which it is not necessary to refer.

Application has been made on behalf of Mr Bainton, the defendant in the proceedings, pursuant to s46(4) of the Supreme Court Act 1970 for an order discharging the order made by Kirby P on 12 November 1991 to which I have referred. Mr Jacobson has appeared to pursue that motion. Objection was taken in the initial stages of the application to two members of the Court sitting to hear the motion. That matter has been dealt with otherwise.