TRUSTEES OF STEVEDORING EMPLOYEES' RETIREMENT FUND v KORANAKIS [1988] NSWCA 162

TRUSTEES OF STEVEDORING EMPLOYEES' RETIREMENT FUND v KORANAKIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MCHUGH JJA 11 April 1988 [1988] NSWCA 162

PRACTICE & PROCEDURE — appeal — judgment on separate issue under Pt31 SCR — later judgment finally disposes of proceedings in favour of claimant — whether claimant must seek leave to appeal from earlier judgment on separated question in response to opponent's appeal from the later final judgment — held: — judgment on earlier separated issue subsumed in final judgment — no need to seek leave to appeal — David Syme & Co Limited v Lloyd [1984] 3 NSWLR 346 applied; commentary in Supreme Court Practice clarified — summons dismissed with costs — claimant should proceed by notice of contention. APPEAL — separated issue — subsumed in final judgment — no leave to appeal necessary — notice of contention appropriate — summons for leave dismissed. Supreme Court Act 1970, s103. Supreme Court Rules, Pt31, Part 51, Rl. ORDER Summons dismissed with costs.

Kirby P On 19 December 1986, Waddell CJ in Eq determined certain matters in dispute between the present parties. Those matters arose on a question or issue which had been ordered to be decided separately from other issues which were in contest between them. Subsequently, on 23 November 1987, Young J heard the balance of the proceedings. His Honour delivered judgment on 17 December 1987 in favour of the present claimant.

The opponent has appealed from the decision of Young J. That appeal is brought, purportedly as of right. It will in due course be heard by the Court.

The claimant having noted the comments in the Supreme Court Practice in relation to Pt51 Rule 1 of the Supreme Court Rules, and for greater caution, brought these proceedings by summons for leave to appeal from the earlier judgment of Waddell CJ in Eq. In light of the comment in the Practice, the claimant's action in taking that course is understandable. The Practice says:- "On an appeal from a final judgment it is usually open to the appellant without obtaining leave to appeal to question an interlocutory or other order which was a step in the procedure leading to the final judgment: Crowley v Glissan (1905) 2 CLR 402; Bunning v Cross (1978) 141 CLR 54 at 82 and see Sugden v Lord St Leonards (1876) 1 PD 154 at 208-9. However, where judgment is given on a separate issue under Pt31 of the Rules, leave to appeal is necessary by virtue of s103 of the Supreme Court Act."