SERGI v AUSTRALIAN BROADCASTING CORPORATION [1989] NSWCA 184

SERGI v AUSTRALIAN BROADCASTING CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 20 December 1989

[1989] NSWCA 184

Priestley JA Following the setting aside by this Court of verdict and judgmentin the defendant's favour at first instance and the ordering of a new trial, the defendant (the "ABC") applied by notice of motion for an indemnity certificate pursuant to s6 of the Suitors Fund Act.

The new trial was ordered in the following circumstances. Some directions given by the trial judge to the jury in the course of his summing-up were adverse to the plaintiffs case. These directions were based on the judge's interpretation of the decision of this Court at an earlier stage of the case. The trial of the case was in 1985 and the plaintiff's notice of appeal was filed in the same year. The appeal was heard and decided this year. The Court set the verdict aside and ordered a new trial on the basis that the trial judge had not been required by this Court's earlier decision, as he had believed, to give the particular directions.

The section of the Suitors Fund Act pursuant to which the ABC applies for an indemnity certificate (s6(1)) was amended by Act 249 of 1987 in a way that could be material to the granting or withholding of the certificate. If s6 in its post amendment form governs the question of the granting of a certificate, then I would grant it. If the earlier form of s6 is the relevant one, then the rather obscure (to me at least) questions arise whether the giving by the judge, for the Reasons which he did, of the directions to the jury which led to the verdict being set aside, was a decision against which the appeal was brought, and whether that appeal succeeded on a question of law. Act 249 of 1987 makes some transitional provisions, but none which says explicitly whether the present application is to be governed by the pre or post amendment form of s6(1).

Although the retrospectivity question may be comparatively easy to answer, it may also be of some importance to the administration of the Suitors Fund, and it seems to me preferable that the question be decided by a bench of three. I therefore adjourn the application to the motion list for hearing on the third Monday of next term (19 February 1990), when it should be possible to dispose of it. It would also be desirable to give the authorities administering the fund an opportunity to be heard. I make the following orders:

1. Notice of motion adjourned for hearing by the Court of Appeal on 19 February 1990.

2. Notice of hearing to be given to the Crown Solicitor.

3. Written submissions to be filed no later than 12 February 1990, on the questions (i) which version of s6 of the Suitors Fund Act applies to the present application; (ii) if the pre amendment s6 governs the case, does the case fall within it.

4. Costs reserved.