CROCKER v COAL AND ALLIED OPERATIONS PTY LIMITED [1996] NSWCA 129

CROCKER v COAL AND ALLIED OPERATIONS PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA and CoLe JA 19 August 1996

[1996] NSWCA 129 SUMMONS — APPEAL

Meagher JA. In this matter the claimant, the plaintiff in the District Court, sought an order to extend the limitation period. That matter came before his Honour Judge Bell and an order was made refusing the application. The claimant did nothing about that order. He could have sought leave to appeal to this Court but he did not do so.

In due course the matter came on for hearing before his Honour Judge Gallen. When it came on for hearing the claimant made another application which in form was an application to vary his Honour Judge Bell's order but in fact was an application to reverse it. His Honour Judge Gallen declined to make such an order on the grounds that he lacked jurisdiction. Either he lacked jurisdiction or he did not. If he did lack jurisdiction, that is the end of the matter. If he did not lack jurisdiction, still the same order should have been made because of the claimant's inertia in exercising any rights he might have had in complaining against Judge Bell's order.

His Honour Judge Gallen thereupon heard the case, the claimant offered no evidence and his Honour entered judgment for the defendant. In those circumstances I cannot see anything wrong with what his Honour did. These various matters were agitated before us in a summons in which the following 5 orders were sought:

1. Verdict and order for costs be set aside; 2. That the matter be set back for re-hearing; 3. That the respondent pay the appellant's costs of this appeal; 4. That there be an extension of time for interlocutory relief; 5. That there be leave to appeal. Only orders 4 and 5 were pressed before us today. In the circumstances it is apparent that none of these grounds has been substantiated and in the Court's view the summons should be dismissed with costs.