JENNINGS v COMMISSIONER OF POLICE [1994] NSWCA 154

JENNINGS v COMMISSIONER OF POLICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 2 May 1994

[1994] NSWCA 154

Priestley JA This is an application for leave to appeal against a decision by his Honour Judge Duck in the Compensation Court to adjourn two matters until another matter, which was subject to appeal in this court, had been determined in this court.

The matters which he stood over were related to the matter the appeal in which is pending in this court. There were a number of considerations for him to take into account in deciding whether or not to make the orders standing the two matters over generally in the way that he did. He had a discretion which he had to exercise judicially in deciding whether to make such orders. It is not necessary for the purposes of this application for leave to detail the circumstances any further than I have already done.

The court is of the view that there was no error or principle involved in what his Honour Judge Duck did in a case where it was possible that he could have decided to go on with the two matters which he stood over generally, and equally, in light of the competing considerations he had to take into account, that he could make the order which he did. His decision falls into the class of interlocutory decisions with which this court will only rarely interfere and then only on the basis of some clear error.

Notwithstanding the earnest submissions of Mr Ower the court is of the view that no such error has been demonstrated. One matter perhaps worthy of mentioning is that the orders standing the two matters over generally were made with leave to restore on seven days written notice to the court and to the other party. That emphasises the interlocutory nature of the orders and the fact that nothing final foreclosing any rights Mr Ower's client may have in regard to the second and third matters has been decided. The situation is procedurally perhaps somewhat difficult for Mr Ower's client but the way of proceeding to getting a final decision on the merits of the matters which his Honour Judge Duck has indicated in his reasons of 19 November 1993 seems to be as practical a method as any other providing the parties follow up their rights with due diligence from this point on. Up to this point, although it may not have been the fault of Mr Ower's client, that client's side of the record is at least equally at fault with the other side of the record for the delays which have occurred. (Discussion as to costs.)