VERSI v BUTTROSE [1993] NSWCA 279

VERSI v BUTTROSE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 15 February 1993

[1993] NSWCA 279

Mahoney JA. This is an application for leave to amend a notice of appeal. The amendment sought is by adding paragraph 1A. That paragraph will raise for consideration for the first time the question of:

... when the referee conducted the reference, and when he prepared his report, there existed facts which would, or might, have given rise to a reasonable apprehension of bias in the mind of a reasonable person.

That application is not formally consented to but I am informed that nothing is urged in opposition to it. In the circumstances, therefore, it is appropriate that, having read the affidavit and the material set forth in it, I grant leave to amend the notice of appeal accordingly. There is enough in the affidavit to warrant, in these circumstances, the adding of the additional ground of appeal notwithstanding that it is to be added at such a late stage.

Mr Carnovale for the applicant has properly referred me to the fact that it will be necessary to consider what orders should be made on an interlocutory basis to secure the proper hearing of the appeal. It is anticipated by the parties thatthe evidence to be adduced in support of the ground of appeal will be, broadly, that in the affidavit of Mr Versi of 19 January 1993, although it may be necessary to supplement that evidence to some extent. It is anticipated that the respondent will also bring evidence in reply and will wish to cross-examine. Indeed, the parties may each wish to have cross-examination of the respective witnesses.

Prima facie it is inappropriate that evidence of this kind be taken before the Court of Appeal of three judges sitting as they normally do. Therefore, it is appropriate to consider what orders should be made on an interlocutory basis to secure that the appropriate evidence be available for determination of the appeal by the Court of Appeal. It may be, I interpolate, that the Court of Appeal may decide itself to refer the matter to a Division when the full circumstances are before it.