JAMES SIMPSON PTY LTD v WALGETT SPECIAL CO-OPERATIVE LTD and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 7 February 1994 [1994] NSWCA 153 Mahoney JA This is an application which comes before the court in rather unusual circumstances. The matter, as I understand, came before Handley JA on 4 February 1994. In consequence of his Honour declining to grant an ex parte injunction the matter comes before the court this afternoon. I am informed by Mr Ireland QC that the plaintiff in the proceedings below claims to have purchased from the first defendant (which I shall describe as "Walgett") certain grain. It applied for an ex parte injunction during vacation to restrain Walgett from dealing with the grain. The return of the proceedings came before Young J and Young J discharged the ex parte injunction and the other relief. Following the judge's order Walgett sold the grain to two other entities. The grain is held by the second defendant as bailee and it has no interest in these proceedings other than in that capacity. Application was made to Handley JA for an order restraining dealing with the grain in a way inconsistent with the interests of the plaintiff. His Honour refused the application. The argument before me this morning is upon the basis of a summons issued pursuant to leave granted by Handley JA. That summons seeks declarations and orders for specific performance and orders in the form of injunctions. I do not purport to detail all the relief sought in that summons. Application was made today by Mr Ireland QC on behalf of the plaintiff for an order restraining the grain being delivered by the second opponent, the bailee of it. The purchasers are not parties to these proceedings. Any order restraining the second defendant/bailee from dealing with the grain would directly affect their interests or might do so and might involve the second defendant in default. In those circumstances I did not see it appropriate that any relief be granted against the second defendant which would have restrained the proper dealing by the two purchasers, or suggested purchasers, with the grain. I do not mean by saying this to indicate any doubt as to the validity of the sale or the effect of that sale. This is a matter to be determined when, in the existing proceeding, the court decides where the title lies. I do not think the court should intervene at the moment to prevent those who purportedly have purchased the goods from Walgett from dealing with the goods in accordance with what appears to be their title. Mr Ireland sought, and the other parties were of the same view, that the matter stand over to 14 February 1994 so that Mr Ireland's application for leave to appeal against Young J's orders could be sought from this Court. As I have indicated there is no practical dispute as to the adjournment of the matter. But a problem has arisen as to the terms. Mr Ireland sought an amendment of the summons which had been previously filed to add para6(a), para6(b) and para6(c). These are paragraphs seeking in effect leave to appeal from Young J's order and orders pending determination of that application. Amendments were also made to the relief referred to in the summons and the summons has been converted into a document which is both a summons for leave and a summons for original relief. 2 UNREPORTED JUDGMENTS Mr Ireland has sought an amendment to the summons so that when the matter comes before the court next Monday he can, if necessary, seek leave to appeal as well as seeking original relief, should that be appropriate. Mr Bradford has objected to this and has claimed the amendments to add the claims in respect of leave to appeal should not be presently allowed. However, he has said he has no objection to that being done if the claim in para6(a) be not a claim for alternative relief but a claim for relief generally. In the circumstances I think it is appropriate, subject to the matters to which I shall refer, that the amendment be allowed at this stage. The effect of the amendment will be that when the matter comes before this Court next Monday Mr Ireland for the plaintiff will be in a position to seek either original relief from this Court or perhaps more likely relief by way of leave to appeal from the orders made by Young J earlier in the proceedings. It is unusual, of course, to have in the same summons a claim for original relief and a claim for leave to appeal against an order of a judge of a Division. There is no requirement of this Court which prevents a summons having two objectives. Mr Bradford submitted this Court had no jurisdiction to grant relief. It is sufficient to say that in my opinion this Court has power to grant any relief which can be granted by any other part of the court, and that this Court can if necessary deal with original applications. Ordinarily it would not do so. Special circumstances would need to be pressed to persuade the court to deal with original applications. But I see no objection in principle to a claim for original relief and a claim for leave to appeal being brought in the same document. I will allow the document to be amended, and reserve leave to the parties to apply if so advised for a rescission of the order granting the leave to amend. Meanwhile if they decide to press their objections to the form of the summons they may do so when the matter comes before the, court on Monday or subsequently if they desire to do so. They should move formally by motion so there is notice of the application given to the court. That notice of motion should be supported in the ordinary way by affidavit. Subject to those matters I would propose to make the orders set forth in the short minutes of order which have been prepared and handed to me, that is, in paral, para4 and para5 of those short minutes as initialled by me with deleted para2 and para3. I initial the short minutes for the purpose of identification. The matter can therefore be stood over until next Monday to be dealt with on the basis to which I have referred. I have referred to the position of the two purchasers or alleged purchasers of the grain in question. During discussion it was suggested that if relief is to be sought against them it should be sought in the Equity proceedings by amendment to the proceedings or by a separate application for relief against them. The present matter has been dealt with against the background of such a discussion. I do not by what I say restrict what any of the parties may do if relief is to be sought against them. Relief may, of course, be sought in the Equity Division in such a way if it be appropriate to do so.