COHEN v BELGRAVE INDUSTRIES PTY LTD [1992] NSWCA 43

COHEN v BELGRAVE INDUSTRIES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, CLARKE and CRIPPS JJA 1 June 1992, 1 June 1992 [1992] NSWCA 43

PRACTICE and PROCEDURE — error in original reasons — error drawn to attention of judge — supplementary reasons — failure to afford opportunity for additional submissions — held: If error of procedure occurred, resulting judgement correct and unassailable — leave to appeal refused.

Kirby P (Expressing the reasons of the Court): The Court is of the opinion that this is not an appropriate matter for leave to appeal.

The application for leave is dismissed upon the basis that the Court is not convinced that any error has been shown in the judgment of Allen J, as supplemented by the later judgment issued by his Honour affirming his earlier orders.

Objection was raised by the claimant to procedure which was followed by his Honour in proceeding to the supplementary judgment without affording the claimant the opportunity to put submissions to him which might have persuaded him to change his mind. However, it was conceded by counsel appearing for the claimant, correctly in the Court's view, that the resulting judgment was correct and unassailable. Accordingly, the procedure which led to the complaint of error is irrelevant to the judgment which was entered.

It is therefore not necessary, in the Court's opinion, for the Court to enter upon the question of whether procedural error occurred. For my own part I am not convinced that a procedural error did occur. However, if it did, it did not affect the correctness of the judgment finally entered by Allen J. It is against that judgment that the summons for leave to appeal is brought. As that judgment was right - or has not been shown to be attended by sufficient doubt - it should stand.