TOTAL AUSTRALIA LTD v DRAKE BROS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope Ap, MCHUGH and CLARKE JJA 8 March 1988 [1988] NSWCA 158 Decision on preliminary question of fact — application for leave to appeal — application supported by claim that decision might result in final determination of case — leave granted — at hearing of appeal appellant raises fresh matters not previously raised in pleadings or otherwise — fresh matters requiring evidence to support them — leave to appeal revoked and appeal dismissed. ORDERS Leave to appeal and order as to costs of application revoked. Appeal dismissed. Appellant to pay costs of appeal and application for leave to appeal. Hope JA The Court has before it an appeal from a decision by Yeldham J declaring that the matters pleaded in pars19-21 of the defendant's statement of defence to the plaintiffs' further amended statement of claim did not as a matter of law constitute a defence to that further amended statement of claim and ordering that those paragraphs be struck out, the defendant to pay the costs of the plaintiffs of the separate trial of this issue. As appears from that last order, his Honour's orders were made at a separate preliminary trial of the issue. Application was made by the present appellant for leave to appeal from that decision to this Court, and on 24 August 1987 that leave was granted. Undoubtedly, an important consideration in the granting of leave was the submission that a decision in the matter if adverse to the appellant would determine the proceedings finally, save in respect of one of the plaintiffs. The matter has now come on as an appeal pursuant to the leave that was granted. As recently as yesterday the appellant for the first time indicated that it would seek to rely upon matters which were not raised before Yeldham J, nor in the application for leave to appeal, nor in the notice of appeal. These matters concern questions as to whether leases were in existence on a particular date and as to whether the losses sustained and claimed by the plaintiffs are purely economic and not recoverable on that account. Both these questions involve the resolution of questions of fact which are not covered by an agreed statement of facts and which would necessarily be the subject of evidence at a hearing. The parties have suggested that in these circumstances, since the appeal cannot go on at present, the hearing of the appeal should be stood over until after the conclusion of the trial and that certain orders should be made in relation to the amendment of the pleadings and other procedural matters in relation to the hearing. An alternative is that the granting of leave to appeal to this Court be revoked. As it seems to me, it is unsatisfactory simply to stand this appeal over until the hearing has been concluded and an appeal from the decision, whatever it may be, at that hearing is taken. The leave was granted, as I have said, on the basis, among other things, that the resolution of the questions which it raised would, in one event, determine the action itself, save as regards one plaintiff. It is apparent from the matters now raised for the first time by the appellant that that will not be so. 2 UNREPORTED JUDGMENTS The appropriate course seems to me to be to revoke the leave to appeal, to allow the trial to go ahead in an amended form, and to have all the issues which the decision in the trial raises brought here by way of appeal if the party affected so thinks fit. There seems to be no occasion to have two appeals in the matter. There is no question, it seems to me, that in any fresh appeal the present appellant could, if it so desired, raise the same issues as it has raised in the present appeal, notwithstanding the revocation of the leave to appeal and the standing, whatever they may have, of the decisions of Yeldham J at first instance on the preliminary questions. ORDER I would accordingly propose that the leave to appeal should be revoked. The appeal would then be incompetent and must be dismissed. I would also propose that the order for costs made in respect of the application for leave to appeal, which was that the costs be costs in the appeal, be revoked and that the present appellant pay the costs of that application and the costs of this aborted appeal. The parties have also asked, and agree in this regard, that certain orders should be made in relation to the amendment of the pleadings in the matter and in relation to interrogatories and otherwise. Those orders are these:- (a) The appellant/defendant have leave to amend its defence within fourteen days from today's date to raise the matters referred to in the document headed "Appellant's Further Submissions" dated 7 March 1988. (b) That the respondents/plaintiffs have leave to file a reply to the amended defence within twenty-one days from today's date. (c) That the parties be at liberty to seek discovery and to interrogate on the amended pleadings. (d) That the parties be at liberty on the completion of the pleadings and of the interrogatory matters to seek an expedited hearing of the matter. In my opinion, it is appropriate that the Court should make those orders and I would propose accordingly. McHugh JA I agree with the orders proposed. It may be that, if the appeal had gone on and the appellant had succeeded on the matters in respect of which leave was originally granted, the actions the subject of the appeal would have been finalised. However, counsel for the appellant did not seek to rely only on his original submissions. He also sought to rely on the additional matters to which Hope JA has referred. In the circumstances, the proper order is to revoke the leave. I agree that leave should be revoked and I also agree with the other orders his Honour has proposed. Clarke JA I agree with the orders proposed by Hope JA. HOPE JA: Those are the orders of the Court.