Blackman v Blackman; Estate W A Blackman [2003] NSWSC 1200

New South Wales Supreme Court

CITATION : Blackman v Blackman; Estate W A Blackman [2003] NSWSC 1200 HEARING DATE(S) : 5 December 2003 JUDGMENT DATE : 5 December 2003

JURISDICTION: Equity Probate List JUDGMENT OF : Hamilton J DECISION : No power to grant certificate under Suitors' Fund Act 1951 because trial had not commenced when fixture was vacated.

CATCHWORDS : APPEAL AND NEW TRIAL [267] - Appeal - Practice and procedure - New South Wales - Suitors' fund - Power to grant indemnity certificate - General principles as to grant or refusal - Fixture vacated by Judge because of exigencies of Court's business - Vacation before commencement of trial - No fault on part of parties. LEGISLATION CITED : Suitors Fund Act 1951 s 6A(1)(c) Andrew William Blackman (P) PARTIES : Rosemary Blackman (D1) Patricia Jessie Underwood (D2) FILE NUMBER(S) : SC 119694/00 COUNSEL : A V Fletcher, Solicitor (P) SOLICITORS : A V Fletcher (P) Cameron & Myers (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

HAMILTON J FRIDAY, 5 DECEMBER 2003

119694/00 ANDREW WILLIAM BLACKMAN v ROSEMARY BLACKMAN & ANOR; ESTATE OF WILLIAM ALLAN BLACKMAN JUDGMENT 1 HIS HONOUR: This is an application by the plaintiff in the proceedings for a certificate in relation to costs. The application is made under s 6A(1)(c) of the Suitors Fund Act 1951, which gives to the Director General of the Attorney General's Department power to pay certain costs from the fund in certain circumstances including: "6A Costs of proceedings not completed by reason of death of judge etc (1) Where on or after the day on which Her Majesty's assent to the Suitors' Fund (Amendment) Act 1959 is signified: …… (c) the hearing of any civil or criminal proceedings is discontinued and a new trial ordered by the presiding judge or magistrate for a reason not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default, in the case of civil proceedings, of all or of any one or more of the parties thereto or their counsel or attorneys, or, in the case of criminal proceedings, of the accused or the accused's counsel or attorney, and the presiding judge or magistrate grants a certificate (which certificate the presiding judge or magistrate is hereby authorised to grant): (i) in the case of civil proceedings — to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default of all or of any one or more of the parties to the proceedings or their counsel or attorneys, or