Tendek v Williams [2004] NSWSC 656

New South Wales Supreme Court

CITATION : Tendek v Williams [2004] NSWSC 656 HEARING DATE(S) : 21 July 2004 JUDGMENT DATE : 21 July 2004

JURISDICTION: Common Law Administrative Law List JUDGMENT OF : Hamilton J DECISION : Application for stay of order refused.

CATCHWORDS : PROCEDURE [77] - Supreme Court procedure - Jurisdiction and generally - Stay of proceedings - Appeal - Power to stay should not generally be exercised by Judge in trial Division but by Court of Appeal. CASES CITED : Tendek v Williams [2004] NSWSC 591 Alexander Tendek (P) PARTIES : Dr Nick Williams (1D) Linda Ryan (2D) Guardianship Tribunal (3D) FILE NUMBER(S) : SC 30048/04 COUNSEL : In person (P) No appearance (1-3D) Self represented (P) SOLICITORS : Bartier Perry (1D) No appearance (2D) I V Knight (3D)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

HAMILTON J

WEDNESDAY, 21 JULY 2004

30048/04 ALEXANDER TENDEK v DR NICK WILLIAMS & ORS

JUDGMENT 1 HIS HONOUR: I have been approached by Mr Tendek in my capacity as Equity Duty Judge with a motion and an unsworn affidavit. The motion seeks a stay of an order made by Palmer J on 1 July 2004: Tendek v Williams [2004] NSWSC 591. The file and the judgment show his Honour as sitting in the Administrative Law List in the Common Law Division, although matters of this sort should in fact be in the Protective List in the Equity Division. His Honour, however, apparently sat in the Common Law Division to determine the matter rather than formally effecting a transfer of the matter to this Division. In one sense, as the matter is still in the Common Law Division, it should be dealt with by the Common Law Duty Judge. However, as Mr Tendek has been sent to this Court and as I have been requested by Kirby J in his capacity as Common Law Duty Judge to deal with the matter, I am sitting in the Common Law Division to deal with it. 2 I have indicated to Mr Tendek that there is not sufficient material before me for me to grant any relief on an ex parte basis; even if the affidavit produced to me were sworn, which it is not, it would not provide a basis for dealing with the application ex parte rather than making it returnable on notice. I indicated to Mr Tendek that if he persisted with an application to have leave to serve short notice of his motion, I should grant it, but that if the material on which he moved were not substantially different from that placed before me, it was highly likely that the application would be refused. The reason for this would not be some technicality but because it is generally deemed appropriate by Judges in the trial Divisions of this Court that not they, but the Court of Appeal, should deal with whether or not orders are to be stayed where the basis of the stay application is appellate proceedings taken or to be taken in the Court of Appeal. 3 I indicated to him that, if he desires a speedy adjudication upon the matter, in my view the proper course is for him to file urgently a summons for leave to appeal from Palmer J's decision and to apply in the appropriate way to the Court of Appeal for the order to be stayed pending the application to the Court of Appeal for leave being dealt with. Upon my indicating those matters to Mr Tendek, he has not persisted with any application before me and the order that I make is that his application to me as Duty Judge of the Common Law Division be dismissed.