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. The appellant seeks an order for the extension of time. She relies upon an affidavit of Mr John Ryan, Solicitor. That affidavit was read without objection. Mr Ryan was not tested by cross-examination and no contrary evidence was given. The evidence discloses that the reason for the delay in bringing the appeal within time was, in part, the residence of the claimant out of New South Wales, namely, in Queensland and the consequent difficulties in obtaining instructions. Another reason was the initial satisfaction with the decision in the proceedings against Carmel Brown. However, the claimant was later advised by counsel that the defensive appeal should be brought. Hence the present application. The appeal, if brought within time, should have been brought by 13 February 1990. The actual date of the bringing of these proceedings was 20 February 1990. Accordingly, the relevant time default is but one week. The trial at first instance involved all of the parties. It is just that the appeal should likewise be available on all matters in contention so that these may be canvassed on the Court of Appeal. No special prejudice was shown or alleged by the opponent. 2 UNREPORTED JUDGMENTS Accordingly, acting pursuant to s46 of the Supreme Court Act 1970, I will make an order extending the time within which to bring the appeal in the proceedings of Kerrie Anne Brockwell against Carmel Jewel Brown. However that order must be upon terms that the claimant, who became out of time, pay the 5 costs that have been incurred as a result of the motion. The orders are: 1. Extend the time for the lodging of the appeal in the proceedings of Brockwell v Brown, CA 040076 of 1990 until 20 February 1990. The 10 notice of appeal which has been accepted by the Registry of the Court shall be deemed to be within time; 2. The claimant is to pay the opponent's costs of and incidental to the motion; and 3. The opponent is to have fourteen days from this date within which to file 15 a notice of cross-appeal, if so advised.