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. However, having regard to the far advanced stage of the proceedings before Hodgson J, in a part-heard hearing of many days it seems more appropriate that the whole of the proceedings at first instance should be finalised. Then, when eventually the appeal is heard, it can be heard upon all issues. The claimant has indicated its intention to appeal, as it says it can as of right, against certain of the orders of his Honour. If that is done, in the normal course this Court would order that the appeal should stand over to be heard with the appeals against any other orders that remain to be made by Hodgson J in the same proceedings. A stay of execution of certain orders has been sought by the claimant. No appeal is yet before the Court. Therefore, we do not presently have process upon which to ground a stay. We were, however, told that an appeal would be filed tomorrow in respect of those of Hodgson J'S orders which are said to be final. Nevertheless, in the circumstances of the case, we consider that it is more appropriate that Hodgson J, at least in the first instance and with his far greater 2 UNREPORTED JUDGMENTS knowledge of the facts of the case, should determine the appropriate conditions of the stay. In doing so, he would be involved in no discourtesy to this Court's function in providing stays in support of appeals. Cf Jennings Constructions Limited v Beraundy Royale Investments Proprietary Limited (1986) 161 CLR 681, 684; John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510, 511. These observations may be drawn to his Honour's attention. It is understood by the Court that the claimant intends to approach his Honour for a stay of the orders which have been made and in respect of which the claimant claims an appeal as of right. The summons for leave to appeal and the motion appended to it are dismissed. The claimant must pay the costs of both. Counsel for Claimant: MD Young Solicitors: Reid and Vesely Counsel for Opponent: L Kallimier, Solicitor Solicitors: JE Mills and Associates