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. The Court has not resolved this controversy. It will cure the time default, there being no opposition to that course. However, the substantive question will remain, in case it is necessary to determine it, for the Court hearing the appeal. The appeal by leave should be consolidated with the appeal purportedly as of right which the claimant has indicated that it intends to bring. The costs of the proceeding today, which may be affected by the orders of the Court hearing the appeal, will be reserved to be determined by that Court. The orders of the Court are accordingly: 1. Leave to appeal granted; 2. Costs of the summons for leave to appeal to be determined by the Court hearing the appeal; and 3. Grant leave to the claimant, although out of time, to bring an appeal as of right, provided notice of such appeal is filed by Tuesday 23 July 1991 at 4.15 p.m. containing the grounds of appeal. 2 UNREPORTED JUDGMENTS THE SOLICITOR GENERAL: As to the form of that last order, if I may be heard. I submit that it would be preferable, if the claimant is permitted to lodge a notice purporting to appeal as of right for the Court expressly to reserve the right of the opponent to challenge the competency of such an appeal in the final hearing. KIRBY P: I thought I made that sufficiently clear. However, I reword and substitute for order 3: 3. The claimant, although out of time, to have until 4 p.m. on Tuesday 23 July 1991 within which to file and serve a notice of appeal, as of right. This leave is without prejudice to the right of the opponent to reargue on the return of the appeal that no appeal lies as of right. MR RAYMENT QC: This is a matter under the Commercial Arbitration Act which was brought on fairly fast before Rogers J. Could we ask your Honours to hear the appeal with expedition? THE SOLICITOR GENERAL: Given the point on which the leave is granted, we would not oppose that. KIRBY P: The Court will give a measure of expedition: 4. Order the expedition of the hearing of the appeal, category C, to the intent that the appeal will be heard within a period of approximately three months and on a date to be determined by the Registrar after consultation with the parties and, so far as possible, bearing in mind the convenience of counsel; and 6. Order written submissions. 1. Leave to appeal granted; 2. Costs of the summons for leave to appeal to be determined by the Court hearing the appeal; and 3. The claimant, although out of time, to have until 4 p.m. on Tuesday 23 July 1991 within which to file and serve a notice of appeal, as of right. This leave is without prejudice to the right of the opponent to reargue on the return of the appeal that no appeal lies as of right. 4. Order the expedition of the hearing of the appeal, category C, to the intent that the appeal will be heard within a period of approximately three months and on a date to be determined by the Registrar after consultation with the parties and, so far as possible, bearing in mind the convenience of counsel; and 5. Order written submissions. Counsel for the Claimant: B Rayment QC / D Pritchard Counsel for the Opponent: K Mason QC (Solicitor General)/ S J Gagler Solicitors for the Claimant: Aubrey F Crawley and Co Solicitors for the Opponent: H K Roberts (State Crown Solicitor)