BATTENFELD (AUST) PTY LIMITED v F J BECK

Court of Appeal (NSW)|1991-07-11|Before: Kirby P, Wood J

KIRBY P SAMUELS and CLARKE JJA 11 July 1991, 11 July 1991 [1991] NSWCA 22

PRACTICE and PROCEDURE - challenge to order that jury be dispensed with under s89 Supreme Court Act 1970 - held: Order is interlocutory - requires leave

purported appeal as of right invalid - struck out.

JURY - mode of trial - order dispensing with - challenge interlocutory - leave required - leave (by maj) refused challenge may be mounted later following final order if the claimant is still aggrieved.

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 558 applied. Supreme Court Act 1970, s89, s101(2)(e).

Kirby P (expressing the orders of THE COURT): Although one member of the Court would give leave, the Court by majority is of the view that leave should not be granted in this case.

The reasons sufficiently appear in the exchanges with counsel. See also Pambula District Hospital v Herriman (1988) 14 NSWLR 387 (CA).

The Court is of the opinion that the order challenged is interlocutory.

As such, it requires the leave of the Court to entertain an appeal. Supreme Court Act 1970, s101(2)(e). The purported appeal as of right from Wood J's decision is invalid and should be struck out.

Necessarily, the dismissal of the summons for leave to appeal does not affect the right of the claimant, if it still be aggrieved, to raise the objection to the interlocutory order now challenged, as of right, in an appeal against the final judgment. See eg Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 558 (CA).

The summons is dismissed. The claimant must pay the opponent's costs.

Summons for leave to appeal dismissed;
Claimant to pay opponent's costs; and
Purported appeal as of right struck out.

Counsel for the Claimant: J R Dowd QC / J Kearney Counsel for the Opponent: R C Tonner Solicitors for the Claimant: Vandervords

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