PROMENADE INVESTMENTS PTY LTD v STATE OF NEW SOUTH WALES [1991] NSWCA 227

PROMENADE INVESTMENTS PTY LTD v STATE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P PRIESTLEY and CLARKE JJA 22 July 1991, 22 July 1991 [1991] NSWCA 227

PRACTICE — appeal — to Supreme Court — to Court of Appeal challenge to award of arbitration — whether appeal under Luna Park Site Act 1990 or Commercial Arbitration Act 1984 — whether leave required — held: Matter not determined — leave to appeal granted — objection to competence of any appeal brought purportedly as of right reserved to Court hearing appeal.

Commercial Arbitration Act 1984. Luna Park Site Act 1990. Supreme Court Act 1970, s101(1)(i)

Kirby P The Court gives leave to the claimant to appeal in this matter.

It gives leave in general terms. However, it will, of course, be open to the opponent, before the Court which hears the appeal by leave, to raise the objections which it voiced before the Court as presently constituted. These included that the claim on the Pointe Gourde issue (p 30 of his Honour's reasons) and the recreational purposes issue (p 34) do not, on any account, demonstrate errors of law, whether "manifest" or otherwise. The Court hearing the appeal can determine such questions.

The claimant suggested that it had an appeal as of right, by reason of the fact that the proceedings are in the Court not under the Commercial Arbitration Act 1984 (see Supreme Court Act s101(1) (i)) but under the Luna Park Site Act 1990, s17. The Court does not determine today whether, upon this or any other basis, the claimant has an appeal by right. The claimant informed the Court that it was out of time by a matter of days to bring an appeal asserted to be as of right. The opponent raises no objection to the Court's curing such time default. However, the opponent contends that there is no appeal as of right, the proceedings being in the Court only under the Commercial Arbitration Act 1984 and no other basis for the appellate jurisdiction of the Supreme Court being shown but under that Act.