LAPORTE GROUP AUSTRALIA LTD v VATSELIAS AND ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and MEAGHER JJA 31 August 1992, 31 August 1992 [1992] NSWCA 129 PRACTICE AND PROCEDURE — Court of Appeal — interlocutory or final orders — orders in Supreme Court (Young J) reserve for separate determination damages recoverable and certain questions of costs — Registrar refers purported appeal to Court — summons for leave to appeal — urgency of determination — held: (Kirby P and Meagher JA; Priestley JA assuming but not deciding): The orders of Young J were interlocutory and leave to appeal was required; (2) (by the Court): Leave should be granted in the circumstances. Supreme Court Act 1970, s101(1)(e). Kirby P Before the Court is a motion which seeks either a declaration in effectthat leave to appeal is not required or, if leave is required, leave to appeal from a judgment of Young J given on 14 May 1992. Earlier Priestley JA expedited the hearing of the appeal. It is certainly the view of the Court that the appeal should be expedited. However, when the matter was returned before the Registrar for the purpose of fixing the date for the hearing of the appeal, the Registrar drew attention to the fact that it seemed to him that the purported appeal was misconceived and that the claimant required leave to appeal. In my view the Registrar was perfectly correct in this conclusion. Young J has left two matters outstanding by his decision of 14 May 1992. The first related to the assessment of damages on the premises exposed in his Honour's reasons. The second related to certain issues as to costs. Accordingly, the orders of Young J were, in my opinion, interlocutory by reason of s101(1)(e) of the Supreme Court Act 1970. They therefore require leave from this Court to appeal. The claimant argued against this conclusion. However, in my opinion, the contrary proposition is really unarguable. The judgment below as interlocutory. Leave is required. That leave should have been first sought. If it had been sought, it would not have been necessary for the matter to be adjourned before the Registrar and stood over to this Court. Nevertheless it is also appropriate to grant leave. The claimant has an outstanding claim which time will deprive it of unless the hearing of the appeal is brought on quickly. That can only be done if leave is granted. It is clearly appropriate to bring the appeal on quickly, as Priestley JA earlier provided. To that end, the claimant should not be delayed by a damages hearing at first instance which would otherwise be required to secure a final judgment from which it could appeal as of right. The damages hearing may have to follow, depending upon the outcome of the appeal to this Court. The orders which I would therefore propose are: 1. Grant leave to appeal; 2 UNREPORTED JUDGMENTS 2. Return the proceedings to the Registrar for the purpose of fixing an appeal hearing on a date, expedited in accordance with the orders earlier made by Priestley JA; 3. Reserve to the Court disposing of the appeal the costs of the summons for leave to appeal; 4. Order that the claimant pay the costs thrown away by reason of the vacated hearing date before the Registrar for the settling of the index of the appeal papers and fixing of the date for the appeal; and 5. Dispense with the Rules of Court relating to the filing of the notice of appeal to the intent that the notice of appeal purportedly filed shall be taken to be a notice of appeal for the appeal. Similarly dispense with the Rules of Court relating to cross-appeals to the intent that the cross-appeal filed in response to the purported notice of appeal should be deemed to have been properly filed. Priestley JA I agree with the orders proposed. I do so, however, on the assumption, and without committing myself to the view, that leave was necessary in this case. Meagher JA I agree with the President. Kirby P: The orders of the Court are accordingly as I have provided. 1. Grant leave to appeal; 2. Return the proceedings to the Registrar for the purpose of fixing an appeal hearing on a date expedited in accordance with orders earlier made by Priestley JA; 3. Reserve to the Court disposing of the appeal the costs of the summons for leave to appeal; 4. Order that the claimant pay the costs thrown away by reason of the vacated hearing date before the Registrar; and 5. Dispense with the Rules of Court relating to the filing of the notice of appeal and of cross-appeal to the intent that the purported notice of appeal and cross-appeal filed are to be deemed to be properly filed. Counsel for the Claimant: D Fagan Solicitors for the Claimant: Freehill Hollingdale and Page Counsel for the first, second and nineth Opponents: Mr Hansen Solicitors for the first, second and nineth Opponents: Harris and Co Counsel for the third to eighth Opponents: Mr Hearsen Solicitors for the third to eighth Opponents: Hunt and Hunt