KERRIE ANNE BROCKWELL v CARMEL JEWEL BROWN [1990] NSWCA 31

KERRIE ANNE BROCKWELL v CARMEL JEWEL BROWN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy ACJ

19 March 1990, 19 March 1990

[1990] NSWCA 31

PRACTICE and PROCEDURE — Court of Appeal — extension of time for appeal — action against two defendants — succeeds against one; fails against another — one defendant appeals — counsel advises defensive appeal against other — one week out of time — appellant in Queensland — no special prejudice alleged — held: Extension granted — subject to terms (a) claimant pays costs; and (b) opponent may cross-appeal within 14 days.

Kirby ACJ Kerrie Anne Brockwell was injured. She brought proceedings against Marian Edith Cummins claiming damages. Subsequently she also brought proceedings against Carmel Jewel Brown in respect of an entirely different incident also claiming damages. It was thought that there was an overlap of some, at least, of the claims for damages.

The Court, at first instance, ordered that the two proceedings be heard together. They were heard together by Master Greenwood on 6, 7 and 8 October 1989. The Master decided that the incident involving Carmel Jewel Brown had not contributed to the damages of Ms Brockwell. He decided that the damages should be recovered exclusively against Marian Edith Cummins.

Within time, Ms Cummins appealed to the Court of Appeal to challenge the quantification of damages found by Master Greenwood. The plaintiff was content with the damages so awarded and with the orders made in the proceedings against Carmel Jewel Brown. However, against the possibility that the Court, on the appeal, might set aside the whole or part of the orders made by Master Greenwood, it is now desired to bring an appeal against the order made in the proceedings against Carmel Jewel Brown. For that purpose the claimant is out of time to appeal.