CONTAINER HAULAGE GROUP PTY LIMITED v FRANK DAVIS [1989] NSWCA 48

CONTAINER HAULAGE GROUP PTY LIMITED v FRANK DAVIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and PRIESTLEY JJA 12 December 1989

[1989] NSWCA 48

PRACTICE and PROCEDURE — appeal — leave to appeal — separated questions tried at first instance — whether Court should hear application for leave to appeal on issues of liability before trial of issues of damages — trial at first instance already lasted several days — whether appeal would be timely — held: It would not. It is preferable, in the circumstances of the case, that all issues at first instance be concluded before an appeal is heard.

PRACTICE and PROCEDURE — stay — complex matter — part-heard at first instance — whether Court of Appeal should stay execution of orders — held: In the circumstances, at least in the first instance, the stay should first be sought from the trial judge.

Jennings Construction Limited v Beraundy Royale Investments Proprietary Limited (1986) 161 CLR 681, 684 and John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510, 511 referred to. Summons dismissed with costs. Motion dismissed with costs.

Kirby P (On behalf of the Court) The Court does not consider it timely to give leave to appeal in this matter. Leave is required because the claimant wishes to appeal from decisions of Hodgson J upon certain issues which, without formal order, have been tried separately at first instance. In short, the claimant wishes to test his Honour's decisions on its liability before his Honour embarks on a hearing on the issue of damages. That hearing is estimated variously to last 2 or 4 days.

It is entirely appropriate for Hodgson J, it being signified that there was an appeal, to stand over further proceedings before him until this Court had had time to deal with the summons for leave to appeal.