PEARSON v THE DISTRICT COURT OF NEW SOUTH WALES [1996] NSWCA 424

PEARSON v THE DISTRICT COURT OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 20 May 1996

[1996] NSWCA 424

Sheller JA. This is an application made by notice of motion filed on 16 May 1996 whereby the first and second claimants seek leave to file supplementary written submissions. The application has been supported by an affidavit of their solicitor, Mr Benson, sworn on 16 May 1996, which is taken as read.

Mr Benson has submitted that in the course of submissions Mr Healey, who appeared before this Court for the claimants, abandoned any reliance upon error on the face of the record. Mr Benson said that he was concerned that any such abandonment failed to take account of the possibility that the decision ofthe Court of Criminal Appeal handed down on 1 December 1995 and the orders of that Court may not be treated as part of the record.

In particular Mr Benson drew my attention to a passage in the President's judgment where his Honour said that the trial Judge, Judge Hosking QC, was perfectly entitled to follow the decision so long as he appreciated that he was not required to do so, and so long as he appreciated the different evidentiary line in which the Federal Court judges reached their conclusions. Mr Benson submitted that if Judge Hosking had acted on this direction in the President's judgment, he must have concluded that there was no evidence on the basis which he could have come to the conclusion that he did.

As I indicated to the parties, I have had the opportunity to read the transcript of the argument of this Court of 3 May 1996. I have no particular recollection that Mr Healey abandoned the submission that there was error on the face of the record. My recollection is that argument was put about the effect of the Court of Criminal Appeal's decision upon Judge Hosking's approach to the case. In my opinion, Mr Healey had a full opportunity to put all arguments he wished to put on behalf of the claimant and indeed, as one would expect, made full use of that opportunity.