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. I do not think that it is necessary to have the matter dealt with on formal application before me sitting in Court. Orders by consent are, in the practice of the Court, ordinarily made when the appropriate documentation is submitted to the Court and a form of consent order provided for signature in chambers. It is desirable that the procedures of the Court proceed with due regard to the saving of costs. To deal with the matter by such consent order would serve this purpose. The Registrar has, by letter to the parties, drawn their attention to the necessity to place before the Court any material which would be relevant in the Court's consideration and in particular would be relevant to suggest that such an order would not be made. Nothing of this kind has placed before the Court. In the circumstances, I order that the respondent have a certificate under the Suitors" Fund Act 1951 in respect of this appeal. I make no order as to the costs of this application. Orders accordingly.