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." This comment in the Practice appears to me to be erroneous if it implies that leave to appeal must be sought in circumstances such as the present. Once the judgment was given by Young J in favour of the claimant the earlier orders of Waddell CJ in Eq were, to that extent, subsumed in the judgment. At common law the claimant could support the judgment of Young J on any basis. The Rules now provide for the filing of a notice of contention if, putting it broadly, it is intended to seek to support a judgment upon a basis, or for a reason, other than that relied upon by the trial judge. 2 UNREPORTED JUDGMENTS The appropriate way by which the claimant can challenge the earlier findings of Waddell CJ in Eq which are now subsumed in, and are a basis for, the judgment of Young J is by notice of contention. S103 of the Supreme Court Act 1970 which requires leave to appeal from questions ordered to be decided separately, is addressed to quite a different matter. It is one which is frequently before the Court, namely where the hearing of the appeal is sought at an interlocutory stage, where the substantive matter in contest between the parties has not yet been finally determined. That is not the case here because the judgment of Young J finally determined the whole matter. Accordingly, s103 of the Supreme Court Act has no application to the present case. The claimant should proceed by notice of contention to raise those matters which are set out in the statement filed in support of the summons. The orders which I propose are:- 1. That the summons be dismissed. 2. That the cost of the summons be the opponent's costs in the appeal. Priestley JA I agree with what the President has said subject to the qualification that the passage in the Supreme Court Practice which has been set out in his reasons seems to me to be, so far as concerns the sentence commencing "However, where judgment is given..." ambiguous rather than completely erroneous. In some circumstances that sentence accurately reflects the situation, but it is faulty in that it does not sufficiently make clear the circumstances about which it is talking. One way in which it could be read is as applying to every situation at any stage of proceedings including after final judgment where judgment has earlier been given on a separate issue under Pt31. To the extent that it suggests that, it is wrong, but appropriately limited it could be of some assistance to practitioners. Not having had my memory refreshed by David Syme & Co Limited v Lloyd, I am not fully clear that it precisely covers the situation that arose in these proceedings although it is undoubtedly an authority which would give pause to anybody who read the sentence in the Practice on which we have been focusing. In the circumstances it seems to me that there is no occasion for the granting of leave here and the parties responsible for bringing the proceedings before the Court should bear the usual consequences of failing in an application, that is, I think the appropriate order is one casting the costs of this failed application upon Mr Jacobson's client. McHugh JA The sentence in the Supreme Court Practice:- However, where judgmentis given on a separate issue under Pt31 of the Rules, leave to appeal is necessary by virtue of s103 of the Supreme Court Act." when read with the preceding sentence suggests that no point in issue under Pt31 of the Rules can be the subject of an appeal without leave of the Court under s103 of the Supreme Court Act. The decision of this Court in David Syme & Co Limited v Lloyd [1984] 3 NSWLR 346 denies that proposition in terms. In the present case the claimant seeks to raise a matter which would be the subject of a notice of contention for the reasons which the President has given. It is my opinion that that issue can be raised in a notice of contention without any need for leave under s103 of the Supreme Court Act. As the President has pointed out, s103 is directed to a quite different situation. It deals with appeals in respect of preliminary matters before any final judgment or order has been made in the proceedings. Accordingly, the present summons is incompetent. In my opinion the proper order is that the summons should be dismissed with costs. UIRUSTEES OF STEVEDORING EMPLOYEES' RETIREMENT FUND v KORANAKIS (McHugh JA) KIRBY P: The order of the Court is unanimously that the summons is dismissed; by majority, the claimant must pay the opponent's costs.