DUGGAN v COMMONWEALTH BANK OF AUSTRALIA [1995] NSWCA 135

DUGGAN v COMMONWEALTH BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, HANDLEY AND SHELLER JJA 10 July 1995, 10 July 1995 [1995] NSWCA 135

PRACTICE AND PROCEDURE — Court of Appeal — discharge or variation of order of single Judge — proper approach to — need to show error of fact-finding or of law or of principle — practical effect of refusal may be to prevent appeal — held: No error — Discharge of orders refused.

Kirby ACJ Ex tempore

By s46(4) of the Supreme Court Act 1970 (the Act) the Court of Appeal may discharge or vary a judgment given by a Judge of Appeal or an order made or decision given by a Judge of Appeal.

On 26 June 1995, Mahoney JA, exercising the powers of the Court under s46(1) of the Act declined to provide a stay of the execution of orders made by Cohen J on 28 April 1995 affecting the parties now before the Court. The facts of the case are summarised in the reasons of Mahoney JA. It is not necessary for the Court as now constituted to repeat them.

At the close of his reasons, Mahoney JA is recorded as indicating that the matter was one upon which his mind had wavered. So it is in my case for the matter is quite closely balanced. However, such is often the case in

procedural orders of this kind. It is a reason why, in appeals or reviews of such orders, courts hesitate before they intervene to give effect to any different order which they might tentatively entertain.

The case has proceeded before this Court upon the footing that there was admissible in the application under s46(4) of the Act new evidence which was not placed before Mahoney JA. I shall assume that this is so. The new evidence was, in effect, evidence provided to the Court in an affidavit of Mr William Duggan, the first claimant, sworn 6 July 1995. Annexed to that affidavit was material from a firm of chartered accountants which indicates that the losses which would be recoverable as damages by the claimants which Mr Duggan and the other claimants sought to prove would be of the order of $1.6 million. In addition, certain other damages were claimed by them. They were summarised in paral4 of the said affidavit: