CARSON v LEGAL SERVICES COMMISSIONER (NO 2) [1997] NSWCA 62

CARSON v LEGAL SERVICES COMMISSIONER (NO 2)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA, STEIN JA and GILES AJA 29 August 1997

[1997] NSWCA 62

Sheller JA, Stein JA and Giles AJA. On 4 February 1997 the claimant, Nicholas Roderick Carson, began these proceedings by filing a summons seeking relief by way of declarations against the first opponent, the Legal Services Commissioner, and orders prohibiting or otherwise restraining the second opponent, the Legal Services Tribunal, from proceeding to conduct a hearing into allegations, particularised in an information, against the claimant in proceedings number 43 of 1996 before it, or, alternatively, staying the proceedings permanently. Section 48 (2) of the Supreme Court Act 1970 assigns to the Court of Appeal proceedings in theCourt for prohibiting or otherwise restraining the Legal Services Tribunal from proceeding in any matter before it. The claimant filed an affidavit sworn on 28 February 1997.

The summons was listed for mention on 3 March 1997. According to the Court file, the proceedings were mentioned on more than one occasion before the Registrar or a Deputy Registrar and timetables set for the filing of written submissions and affidavits. On 12 May 1997 the Registrar specially fixed the proceedings for hearing on 26, 27 and 28 August 1997. On 23 June 1997 the first opponent was ordered to file a notice of motion setting out orders and directions he required, returnable before the Registrar on 7 July 1997. On 27 June 1997 the first opponent filed a notice of motion seeking to have the dates for hearing vacated and directions as to the admissibility of paras 18 to 40 and 44 to 90 of the claimant's affidavit of 28 February 1997 determined as a separate question prior to the hearing of the case. The motion went on to seek an order, conditional upon the Court ruling that the evidence was admissible, that the taking of such evidence and the balance of other evidence in the claimant's case be remitted under s 51 of the Supreme Court Act to a single Judge prior to the further hearing of the case or, alternatively, if the Court ruled the evidence inadmissible, the case to be re-listed for hearing for three days.