LAM v RHODES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and SHELLER JJA 30 May 1994 [1994] NSWCA 175 Mahoney JA This is an application for leave to appeal against the judgment in the District Court given on 20 April 1994. The court would normally not give reasons in relation to an application for leave to appeal, but there are special circumstances in this case which make it desirable for the court to add some observations. The proceedings were in respect of in juries said to have resulted from a motor vehicle accident on 15 December 1988. The matter before the judge was only for assessment of damages. The judgment given on 20 April 1994 was one in which the learned judge, having concluded that the plaintiff's credibility was in issue and that he did not accept him as a credible witness, that his evidence was unreliable, gave judgment for the plaintiff only for $7346.60 being the agreed out-of-pocket expenses. The application for leave to appeal came before this court. It was filed out of time but no prejudice was suggested in relation to that. For myself I would ordinarily have given an extension of time were it appropriate for leave to appeal to be granted. Without agitating the matters argued in the application for leave to appeal, if leave be required my conclusion would be that, in the circumstances, the case would not have been appropriate for leave to appeal. I do not mean by this that necessarily the appeal if brought would fail. But the court has a discretion in relation to applications for leave to appeal and within that discretion I would hold the application not successful. However, during the course of argument the question has arisen whether the appeal lies, not by leave, but as of right. Reference was made to the District Court Act and its provisions. Neither party was in a position to argue the matter. All that can be said is that it is at least open to argument that there is an appeal as of right. The court has considered what course it should take. In my opinion the appropriate course to be followed is to deal with the application for leave to appeal as such. I would dismiss that application with costs. However, in doing so, I would make it clear that, if the plaintiff has a right of appeal as of right to this court, then dismissal of the application should not be seen as any reason why that appeal should not be pursued. In so saying I do not form any conclusion whether the appeal lies as of right. But a question has arisen as to the construction of the District Court Act in this regard and as the matter has apparently not been before this court before, I prefer not to deal with the matter except after full argument. If the plaintiff desires to press that appeal as of right, he may do so. If he is to do so it will be necessary for him to obtain an extension of time for the filing of the notice of appeal. 2 UNREPORTED JUDGMENTS However Mr Shore who, as I have assumed, appears for the insurer in the matter has indicated that no prejudice is suggested because of the delay and he has suggested no reason why an extension of time should not be given. No doubt in the circumstances the defendant if approached would consent to extension of time for the filing of the notice of appeal, if it should be the notice of appeal lay as of right. In the circumstances therefore the order I propose is that the application for leave to appeal be dismissed with costs. Clarke JA I agree. Sheller JA I agree. MAHONEY JA: Does that cover all the matters? (Counsel agreed there were no other matters) Application for leave to appeal dismissed with costs.