LITHGOW DISTRICT HOSPITAL v MILLER [1994] NSWCA 184

LITHGOW DISTRICT HOSPITAL v MILLER SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBy P, MAHONEY JA and POWELL JA 10 October 1994 [1994] NSWCA 184

PRACTICE & PROCEDURE — Court of Appeal — leave to appeal — whether required — order by District Court Judge following jury's verdict granting a new trial — held (by the Court): (1) Semble: The order is interlocutory and requires leave; (2) The summons for leave, and a motion for extension of time stood over to be heard with the purported appeal as of right.

District Court Act 1973, s 126.

Kirby P. (delivering the judgment of the Court):

THE COURT: The Court has before it an application for an extension of time within which to file a summons for leave to appeal against an order by Moore DCJ in the District Court. Moore DCJ ordered a new trial following a jury's verdict in purported reliance on the District Court Act 1973, s 126. Initially, a notice of appeal was filed in this Court by the claimant, upon the assumption that the order of his Honour was final and that an appeal lay to this Court as of right so that no leave was required.

The Registrar raised a question as to whether leave was required. The claimant (the appellant in the appeal) does not concede that leave is required. It continues to assert that an appeal lies to this Court, as of right.

The Court is presently minded to the view that the order made by the primary judge was interlocutory and that leave is required. There is authority both ways. It is not convenient to the Court today finally to determine that question.

The preliminary issue of whether an extension of time should be granted should itself not be determined until it be necessary to decide whether or not the matter is one requiring leave at all. If leave is not required, it is unnecessary to provide an extension of time.