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. The position of the claimant in the present motion can neither deteriorate nor be improved by the further lapse of time between today and the final hearing of the proceedings. The Court is therefore of the view that the motion for extension of time should be stood over to be heard with the appeal and, if necessary, with the summons for leave to appeal which the claimant proposes to pursue. That will permit the claimant to file both a summons and the Statement required by the Rules. The consideration of whether leave is required, should be returned before the Court at the one time, with the motion and the purported appeal. The appeal can then be dealt with either in its own right or pursuant to leave, if leave is required and granted. The orders of the Court are:- 1. That the motion stand over to be heard with the summons; 2 UNREPORTED JUDGMENTS 2. That the claimant have fourteen days within which to file a summons, which will be filed without prejudice to the claimant's contention that leave to appeal is not required and that it has an appeal lies to this Court as of right; and 5 3. That the costs of the proceedings today be costs in the proceedings, both so returned. Counsel for the claimant: J H Lichtenberger 10 Solicitors for the claimant: Pieterse and Pieterse Counsel for the opponent: D G Stewart Solicitors for the opponent: Higgins and Higgins