HILL v GRAND UNITED FRIENDLY SOCIETY AND ANOR [1997] NSWCA 149

HILL v GRAND UNITED FRIENDLY SOCIETY AND ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA 11 August 1997

[1997] NSWCA 149 Sheller JA

Motion

This is an application by Notice of Motion for the following order:

"1. That execution of and proceedings in elation to the orders and judgment of Justice Windeyer of 28 November 1996 and 10 December 1996 be stayed pending the determination of this appeal.

2. That execution of and proceedings in relation to the order for costs made by Justice Young in proceedings No 2675 of 1992 be stayed pending the determination of this appeal.

3. That the hearing of this appeal be expedited.

4. Such further orders as the court deems fit."

The Notice of Motion was filed in CA40802/96. The claimant is the appellant, David Hamilton Hill. The opponents are the respondents, Grand United Friendly Society and Rodney Kivell Downing.

The appeal is from a decision of his Honour Mr Justice Windeyer given on 28 November 1996 and 10 December 1996 in matter number ED4946/91. The opponents do not oppose the making of an order in terms of Order I sought and I need say no more about this.

The application is supported by an affidavit of Mr Hill sworn on 2 May 1997. No objection was taken by the opponents to any part of this affidavit. I am informed, however, that it had been intended to cross-examine Mr Hill on his affidavit. It is accepted that Mr Hill, as a result of a recent serious heart operation, is unable to attend today for cross-examination.

The second order, which is a matter of contest, relates to an order for costs made by Young J in different proceedings, namely 2675/92. Understandably, a question was raised before me as to the power of this Court to make such an order in proceedings not before the Court by way of appeal.

Mr Bannon SC drew my attention to a number of authorities which touch upon this question of power, notably the decision of Isaacs J in Hutchinson v Nominal Defendant [1972] 1 NSWLR 443, and a decision of Kirby P, when President of this Court, in Ferris v Plaister [No 2] of 30 September 1994 to be found in Butterworths Unreported Judgments of 1996.