SMITH BROS TRADE AND TRANSPORT TERMINAL PTY LIMITED (formerly SMITH BROS CRANES AND CARTAGE PTY LIMITED) v PACIFIC POWER (formerly ELECTRICITY COMMISSION OF NSW) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER JA and ABADEE AJA 2 September 1996 [1996] NSWCA 481 Sheller JA. This is an application by notice of motion that the Court grant such leave as may be necessary to the claimant, Smith Bros Trade and Transport Terminal Pty Limited, to appeal to the Court from orders entered in the District Court on | July 1996. The application is supported by two affidavits by Peter Koronious, one of 15 and the other of 30 August 1996. A notice of appeal was filed on 31 May 1996. The points that seem to arise here flow from the fact that when the trialJudge, his Honour Judge Mahoney QC, delivered his reasons for judgment on 5 February 1996 he found that the plaintiff was entitled to certain monies which were apparently agreed between the parties at $53,743. He then stood the matter over to enable the parties either to agree on the question of costs and interest or to have the matter relisted. The parties did so agree and on 30 April 1996 filed a document setting out their agreement but headed, as it turns out, it seems, unfortunately, 'Consent Order'. That document was signed by his Honour on 1 July 1996 which on the face of it would appear to be the day in which he made orders in accordance with it. The principle points in this case arise because of the terms of s 101 of the Supreme Court Act and what it has to say about consent orders. I must say that as at present advised I would not regard consent orders there referred to as intended to embrace the events that took place in this case which are everyday and commonplace when Judges ask the assistance of parties in determining what are the appropriate amounts for interest on verdicts and otherwise. Another point seems to be whether the period of 28 days ran from | July 1996 in which case the notice of appeal was more than within time or whether it ran from the date on which the consent order was apparently signed and, perhaps filed, 30 April 1996, in which case it was slightly out of time. This again does not appear to me to be a matter of great substance. I would have thought theorder ran from the date that his Honour made it. However, there may be more importance attached to these matters than presently appears to me. The claimant referred to the fact that the appropriate vehicle for a challenge to competency is under Pt 51 r 17A. Accordingly, it seems to me, in the present case, appropriate that the notice of appeal which has been filed proceeds in the ordinary way with the settling of index and filing of appeal books. If the opponent/respondent sees fit to file a notice objecting to competency that should be done in accordance with the Rules and can then be disposed of as may appear appropriate at the time. For these reasons I do not think it is necessary to make any order in accordance with the terms of the notice of motion. The notice of motion should be dismissed and the costs should be costs on the appeal. 2 UNREPORTED JUDGMENTS Abadee AJA. I agree. Sheller JA. The order will be as I have stated it. LOCKE: Could I just clarify one point? In relation to a filing of a challenge to competency, strictly speaking, the time limit has already expired for that. Would your Honour, in effect, allow the time to run from today under the relevant Rule, that is 21 days from today. SHELLER JA: Yes. The Court will allow the time for filing a notice of objection to competency to run for 21 days from today. Orders accordingly.