HART v HERRON [1993] NSWCA 131

HART v HERRON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA 11 June 1993

[1993] NSWCA 131

Sheller JA In this matter, there were handed up short minutes of orders proposed to dispose of the four Notices of Motion, one of which was the subject of the Court's judgment of 3 June 1993. In addition, the short minutes dealt with directions as to further conduct of the appeals.

For the most part, there is no dispute about the form of those orders. One of the orders sought is for expedition. I indicated to the parties that I thought an application for expedition was premature and at this stage I am not prepared to make such an order.

The appellant, Mr Hart, sought an order that the respondent, Dr Herron, pay his costs of and incidental to his Notices of Motion, both of which will be dismissed.

Mr Sackar, of Queens Counsel, who appears for the respondent, urged upon me that this was a case, despite the failure of the motions by his client, where costs as a matter of discretion should be made costs in the appeal. It is true that the motion brought to the Court's attention the many delays in proceeding with the appeal. But it was a motion that was only filed after steps, albeit very delayed, had been taken to have the appeal set down for hearing.

In all the circumstances, I do not think it appropriate to depart from the ordinary rule that the costs should follow the event. Accordingly, in my opinion, the respondent should pay the appellant's costs of and incidental to the respondent's Notices of Motion.

The other matter in contest related to the general directions sought. In that regard I was informed by Mr Branson of Queens Counsel, who appears for the appellant, that it is proposed to file and to serve an amended Notice of Appeal. It was suggested that the appellant should be given until 23 July 1993 to do this. In my opinion, the stage has been reached in this case where the parties must be required to take all steps necessary to bring the appeal on for hearing. There is apparently some problem, I have been informed, about the appellant's obtaining Legal Aid or other means for prosecuting the appeal.