EMMERTON v MINISTER FOR NSW POLICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY JA 7 February 1994 [1994] NSWCA 90 Priestley JA Before me is a notice of motion by claimants who are the respondents named in a notice of appeal filed by Mr Emmerton, who is the opponent in the notice of motion before me and who was the applicant before Badgery-Parker J for certain orders which Badgery-Parker J refused and against which Mr Emmerton wishes to appeal. Those orders of Badgery-Parker J are plainly interlocutory orders and plainly orders which cannot be made subject simply to the notice of appeal, but which must be the subject of application for leave to appeal before any notice of appeal can be filed. A question arose in the course of discussion this morning whether a single judge of the Court of Appeal under s46 could make the order sought in the claimants notice of motion which was that Mr Emmerton's notice of appeal be struck out as being incompetent. In my view the better construction of s46 would permit a notice of appeal to be struck out as incompetent by a single judge in circumstances where a purported notice of appeal should have been preceded by a successful application for leave to appeal. It is not necessary to decide that question however, because as certain difficulties were pointed out to Mr Emmerton in the course of his submissions to the court, he indicated that he wished to seek the courts leave to amend his proceedings in the record of the court, namely, his notice of appeal, to transform it into an application for leave to appeal. It is that application that I am going to decide and that is an application which clearly, on any view of s46, I have power to deal with sitting alone. The application to amend gained one layer of complication when Mr Emmerton included in it leave to put in his new document an application for leave to appeal against a decision given by Levine J some time before the application was made to Badgery-Parker J by Mr Emmerton, the dismissal of which has led him to wish to appeal against that last named judge's orders. Mr Emmerton's application to Badgery-Parker J was one under Pt6 Div 2 of the Supreme Court Act of 1970 which enables the court to order interim payments before the stage of final judgment is reached in proceedings in which damages are claimed. Mr Emmerton had commenced proceedings against a number of defendants, against some of which he had obtained default judgment because the defences filed with those defendants had not been verified. Levine J set aside that default judgment after argument some time before Mr Emmerton's application under Div 2 came before Badgery-Parker J. Mr Emmerton is of the view that his Pt6 Div 2 application would be strengthened if it were recognised that, as he contends, the judgment set aside by Levine J was wrongly set aside. He had been of the view that he had done what was necessary to be able to argue that Levine J's judgment itself should ordinarily be disregarded or set aside. Upon it being explained to 2 UNREPORTED JUDGMENTS him that so far as the papers before me indicate, and it was not suggested there were any other relevant papers, his views about his ability to contest the validity of Levine J's judgment were wrong, he from his point of view, I should think, sensibly sought to include in the present appeal proceedings, if I could call them that, an application for leave to appeal (which application would have to include an application for extension of time to apply for leave to appeal) against Levine J's judgment. Mr Smith, who appears for the claimants in the notice of motion before me said he would have no objection to the appeal proceedings concerning Badgery-Parker J's judgment being amended so that a properly constituted application for leave to appeal would replace what presently appears in the papers, complying with all the requirements of the Court of Appeal for application for leave to appeal. He submitted that it would not be particularly appropriate to include in the leave to amend leave to widen the subject matter of the appeal proceedings concerning Badgery-Parker J's judgment to include the contentions Mr Emmerton wishes to raise in regard to Levine J's judgment. It seems to me that is a sensible argument and lo accede to it will not substantially prejudice Mr Emmerton's position. What I envisage is that if I grant the application to amend restricted to an application for leave to appeal against Badgery-Parker J's judgment, it would be a matter then for Mr Emmerton to consider whether he wants to file an application for an extension of time for leave to appeal against Levine J's judgment and to incorporate a motion for extension of time with an application for leave to appeal in proper form. I doubt whether there is any difference in substance in the position that will follow if I take that course from the position that will follow if I granted the wider application to amend by Mr Emmerton. It seems to me proceedings will go ahead in the more orderly way if I restrict the leave to amend in the way I have indicated. There was some argument about costs. Mr Emmerton, I think, recognised that he could not really oppose an order for costs but he did ask that any enforcement of such order be deferred so that he could not be impeded in pursuing his cause of action by the possibility of the sort of proceedings that might follow from enforcement of the costs order. In my opinion, I should make an order in the ordinary way. If, subsequently, consequences such as Mr Emmerton fears look as if they may become real then he may, if he wishes, approach the court for relief and the court would be in a much better position to judge then whether he was entitled to any relief than it is at the moment. The orders I make are that leave be granted to Mr Emmerton to amend what is currently called notice of appeal in the appeal proceedings from Badgery-Parker J's judgment so that he complies with the Rules for applications for leave to appeal and extensions of time, and includes in his documentation all the matters that are necessary to be included in an application for extension of time and for leave to appeal. This leave is confined to amendments relating to an application for leave to appeal against Badgery-Parker J's judgment. The costs which were asked for by the claimant today were that Mr Emmerton pay the claimant's costs of today. That seems to me to be an appropriate order and I make that order.