LITHGOW DISTRICT HOSPITAL v MILLER [1994] NSWCA 185

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

PRIESTLEY, HANDLEY and SHELLER JJA 7 November 1994, 8 December 1994

[1994] NSWCA 185

PRACTICE and PROCEDURE — s126 District Court Act 1973 — entry of verdict; new trial; "irregularity"; rectification

The appellant filed a notice of appeal from an order made pursuant to s126 of the District Court Act 1973 directing that there be a new trial in the proceedings. The trial judge said that he would entertain the application under s126 before entering a verdict. He neither directed entry of the verdict nor gave judgment. He ordered that there be a new trial and the matter stood over for hearing. The verdict was recorded on the District Court file cover. When the appeal came before the Registrar of the Court of Appeal for settling of the appeal index, the Registrar referred the question of whether there was a right of appeal from the trial judge's order to the Court for determination.

Held:

(1) The recording of the verdict on the District Court file cover was inevitable once the verdict had been given by the jury. In this sense the verdict had been "entered".

(2) (Priestley JA reserving) Once a jury has returned a verdict, there is no basis upon which the trial judge can intervene to prevent due recording of the verdict.

(3) Once the jury has given its verdict an application under s126(2) cannot be entertained. Any application must be made after judgment pursuant to s126(1).

(4) By failing to give judgment before entertaining the application under s126(1) the trial judge failed to comply with a requirement of the Act.

(5) S159(1) required that this failure be treated as an irregularity. The Court should rectify this by ordering, pursuant to s75A(6) of the Supreme Court Act 1970, judgment to take effect from the date of trial,