HENRICKS v AGNEW [1997] NSWCA 146

HENRICKS v AGNEW

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and CLARKE AJA 19 May 1997

[1997] NSWCA 146

Priestley JA. The Court is of the view that leave should be granted in this case to enable the proposition assumed by the trial judge, namely that the Selida case bound him to apply the criteria set out in it, to be fully examined in an appeal. That is the primary reason for the Court granting leave, although the appeal which we give leave to bring will be one without restrictions.

The Court is of the view also that expedition should be granted so that the case can come on as soon as reasonably convenient and for that purpose it should be listed in the next callover list of the Registrar.

It has been submitted that it might well be an expedient way of getting the appeal ready if we were to make an order permitting, in substance, the affidavit of Mr Stephen Ferguson which is before the Court today and is said to contain all relevant materials, to be used in place of the appeal papers.

I do not think the Court would make an order to that effect at this point, but would say for the benefit of the Registrar that it sounds like a sensible idea, subject to whatever submissions are made to him at the time when he fixes a hearing date and gives final directions about the preparation of the appeal papers. It may be that one side or the other will have somefurther thought about something that might go in. I would not want to preclude that possibility but the intention of the Court is that the appeal should come on with reasonable speed so that if the plaintiff is successful in the appeal and the trial is to proceed, the case will not lose whatever place it presently has in the likely list for hearing.

We make costs in the application costs in the appeal.

RYAN: Is your Honour saying that the hearing should come on before the appeal?