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. However, in order to enable the matter to proceed at this stage, the parties are agreed that the appropriate order is that the appellant file affidavits setting forth the evidence proposed to be given in support of that ground of appeal, and that they be served appropriately; that the respondent then file affidavits responding to those matters and referring to other matters as may be desired in relation to the matter, and those affidavits be exchanged; and that then affidavits in reply, if any, be filed and served. When that has been done the court will be in a better position to decide how the matter may best proceed, and, for example, decide whether such cross-examination as may beproposed is of such dimensions as can conveniently be undertaken before the Court of Appeal itself, or whether some other order should be made. 2 UNREPORTED JUDGMENTS I will therefore direct that the affidavits for the applicants be filed within a set time, the affidavits for the respondents be filed within a further time and further affidavits be filed in due course. The matter can then be reconsidered by the court. I direct that the affidavits on behalf of the appellant in this sense be filed within two weeks from the present date; that those for the respondent be filed within twenty-one days after the expiration of that two week period; and that further affidavits in reply by the appellant, if any, be filed within seven days after the expiration of that twenty-one day period. The parties can, by consent, abridge the times. The matter should then be relisted to see whether any further order should be made. I will stand over the notice of motion until 5 April 1993 and the matter can proceed in that way. Costs of today will be reserved to be dealt with when the notice of motion is finally disposed of. Orders accordingly.