VALASSIS v McCABE [1995] NSWCA 481

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VALASSIS v McCABE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

5 KIRBY P, SHELLER JA and POWELL JA

10 April 1995

[1995] NSWCA 481

ADMINISTRATIVE LAW — application for relief in the nature of mandamus — discretionary considerations — McInerney J declines relief on the ground of pending proceedings in Local Court which will consider merits — on summons for leave to appeal and for relief from Court of Appeal — held: Relief declined — no error —

proceedings should continue on merits in Local Court.

Kirby P. The Court has before it a summons. The summons claims two forms of relief. They are:

1. An order that the claimant have leave to appeal from a decision of

McInerney J on 15 November 1994 whereby his Honour was exercising jurisdiction of the Supreme Court in the Administrative Law Division; and

. An order from the Court of Appeal itself directed to Mr T Cleary,

magistrate, requiring him to perform his duties pursuant to the Rules of the Local Court. Mr Cleary submitted to the orders of the Court. He was excused.

The Court has had the benefit of the submissions as well as a statement under Part 51 Rule 3.7 from Mr Dennis Valassis, who is the claimant and whohas appeared on his own behalf. It has also had the assistance of Mr P W Rosier who is the solicitor for Mr Colin McCabe and McCabe Wellings Insurance Broker Pty Limited, the second respondent and the second opponent to the summons.

In my opinion, the claimant has not shown any error in the reasons which McInerney J gave for the decision which he took to decline to provide relief in the nature of mandamus. That relief has a discretionary element.

Although it is true that, being for the enforcement of law, the discretion is not an uncontrolled discretion, the course which McInerney J proposed seems a sensible course to me. He proposed that the proceedings should continue in the Local Court where they are listed in June 1995 and where a hearing on the merits will doubtless resolve the matter in a just way. So far as the application for an order of this Court is concerned, to provide relief it would be necessary to show, in effect, that what McInerney J did was wrong. It is not strictly necessary for the Court to be convinced that what his Honour did was right. It is enough for me to say that I have seen no error shown in the course which McInerney J took. It obviates the need for immediate relief from this Court. For that reason I would decline the request for leave to appeal.