ZAIDI v HEALTH CARE COMPLAINTS COMMISSION [1997] NSWCA 355

ZAIDI v HEALTH CARE COMPLAINTS COMMISSION

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Mason P, PRIESTLEY JA and BROWNIE AJA 28 April 1997

[1997] NSWCA 355

Mason P. This matter was called on quite late in the afternoon and the Court reconstituted so that it could deal with it.

It emerged that the appellant whose appeal is subject to a challenge as to competency has indicated that he is ready to file a summons for prerogative relief as a back up to the appeal which he wishes to agitate. The grounds would be the same although there may be a threshold difficulty of prerogative relief in the light of Craig's case.

It appears to the Court that it would be more useful in that context that the Court deal with the whole of the argument. The Court therefore proposes to adjourn the motion to Monday, 19 May and to note that the appellant undertakes that within seven days he will file the summons for prerogative relief. That summons can bemade returnable on 19 May.

If the parties are agreed that the matter should be determined on some other date, they are at liberty to approach the Registrar for an early hearing date for both the adjournment motion and the foreshadowed summons.

Mr Brereton has indicated that there may be some difficulty with respect to the payment of the filing fee with respect to the foreshadowed summons. The fee which according to the current practice would appear to be $553 for the filing of a summons is a matter which the Registrar has a power to waive. I am not suggesting this is a proper case for the waiver but the question of impecuniosity could be addressed by the Registrar within the confines of the undertaking that has been given.

I propose that there be liberty to apply should there be any difficulty in working out the undertaking of the directions.

It may be that this rolled up set of proceedings should have been foreshadowed or promoted with greater vigour by the current appellant and that an adverse cost consequence with respect to today's costs should flow. I would propose, however, that costs of today be reserved and the matter can be determined when the foreshadowed summons and the adjourned motion to challenge as to competency can be dealt with.