HUGHES BROS PTY LTD v MINISTER FOR PUBLIC WORKS [1994] NSWCA 141

HUGHES BROS PTY LTD v MINISTER FOR PUBLIC WORKS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and COLE JJA 17 October 1994, 17 October 1994

[1994] NSWCA 141

PRACTICE & PROCEDURE - reference under Pt72 SCR - defective report — judge in Construction List decides to take matter under control of Supreme Court — summons for leave to appeal refused — reference referee already protracted — course available to judge — no error. Friend and Booker Pty Ltd v Council of the Shire of Eurobodalla [1993] NSWJB 123, refd to.

PRACTICE & PROCEDURE — Supreme Court — reference of matters to referee under Pt72 SCR — referee's report provides inadequate reasons — primary judge (Rolfe J) decides to take control of proceedings in Supreme Court — declines to refer matter back to referee — on summons for leave to appeal — held (Kirby P; Meagher JA and Cole JA concurring): (1) Reference back to the referee was a course available to the primary judge. Friend and Booker Pty Ltd v Council of the Shire of Eurobodalla, Court of Appeal (NSW), unreported, 9 November 1993; [1993] NSWJB 123 considered; (2) However, in the circumstances of the defects in the report of the referee and an already lengthy hearing before the referee, the course taken by the judge was available to him and was not shown to have been wrong; (3) Leave to appeal refused.

Kirby P The parties to this summons have been involved in a lengthy dispute. There is now before this Court a summons for leave to appeal.

Reference of a building dispute to a referee and resort back

The dispute arose out of the contract between the parties in relation to the construction of a government office building in Wollongong. After the construction, the dispute took the parties to the Supreme Court by proceedings commenced on 19 April 1991. Those proceedings came quickly before Staff AJ. His Honour was requested to make a reference to a referee under Pt72 of the Supreme Court Rules.