NEW SOUTH WALES BAPTIST NURSING HOMES TRUST (t/as YALLAMBIE NURSING HOME) v BINGHAM [1994] NSWCA 218

NEW SOUTH WALES BAPTIST NURSING HOMES TRUST (t/as YALLAMBIE NURSING HOME) v BINGHAM

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 29 March 1994

[1994] NSWCA 218

Mahoney JA. On 21 September 1993 the Court of Appeal (Mahoney, Sheller and Cripps JJA) upheld an appeal from the Compensation Court. It ordered that the award made by that Court be set aside and that the matter be returned to that Court for further consideration. The respondent was ordered to pay the appellant's costs of the appeal. No order was made under the Suitors" Fund Act 1951.

The appellant and the respondent have now submitted to the Court a form of consent order. The order provides that the respondent be given a Suitor's Fund Certificate under the Suitors" Fund Act in respect of the costs of that appeal.

Two questions arise: whether an order should be made at this stage; and whether it should be made by me, as a Judge of the Court of Appeal, and without a formal hearing in Court of the application.

Section 6 of the Act provides that where an appeal to the Supreme Court on a question of law or fact succeeds 'the Supreme Court may, on application, grant to the respondent to the appeal ... an indemnity certificate in respect of the appeal'. It is such a certificate which is now sought. Such certificates are ordinarily sought and, ifappropriate, granted when the substantial issues in the appeal are dealt with. That was not done in the present case.

It accords with the practice of the Court that such a certificate may be granted 'on application' after the appeal has been dealt with by the Court. In my opinion, an application for the purpose in this matter could now be made.

It is within the power of a Judge of Appeal to exercise the powers of the Court of Appeal to give any judgment by consent or make any order by consent, subject to the restrictions referred to in s 46 of the Supreme Court Act 1970. I am of opinion that I, as a Judge of Appeal, may make by consent the present order.