PACIFIC POWER v JAY [1995] NSWCA 347

PACIFIC POWER v JAY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY AP, PRIESTLEY JA and HUNTER AJA 14 August 1995

[1995] NSWCA 347

Mahoney AP. This is an application for leave to appeal in relation to a matter to which, as counsel have given the Court to understand, the Dust Diseases Tribunal Act applies.

Counsel, on coming before the Court, have informed the Court that it is the view of the applicant that there is an appeal as of right under s 32 of the Act. Mr Joseph SC for the respondent is of the same view. The terms of the section are somewhat unusual in the sense that, as the Court has been informed, it has not been the subject of consideration by the Court. In particular, as the Court has been informed, there is no ruling as to whether leave to appeal is necessary in relation to an order such as the present made by the tribunal.

The Court accepts the view that there ought to be, and this is not opposed, an extension of time for the filing of the notice of appeal. The applicant before the Court today may then pursue an appeal to this Court against the order that has been made.

The Court will stand over the present application for leave to appeal to the hearing of that appeal. If it should be that leave to appeal is necessary then the rights of the applicant will to that extent be safeguarded.

A question arises as to what order for costs should be made in relation to the present application. The Court is of the opinion that the costs ought to be reserved to the Court dealing with the application in due course. That will mean that if the application is dismissed then of course, the present applicant will pay the costs of the application, including inter alia the costs of today.

Mr Joseph has referred to the possibility of expedition. This is not a matter which the Court can deal with at the present time. If a case can be made out for expedition it should be made out in the ordinary way.