TRYMIND PTY LTD T/AS WHITE AND McKAYS GLASS v K AND W HAULAGE PTY LTD [1994] NSWCA 322

TRYMIND PTY LTD T/AS WHITE & McKAYS GLASS v K & W HAULAGE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and POWELL JJA 12 December, 12 December 1994 [1994] NSWCA 322

PRACTICE & PROCEDURE - Court of Appeal — appeal as of right — summons for leave to cross-appeal — need to economise use of Court of Appeal's time — held: Summons adjourned to be heard with appeal

Kirby P (Delivering the reasons of the Court for procedural orders): Sheller JA on 15 November 1994, for reasons which he then published, dismissed the application, in effect, which asserted that the present claimant had a cross appeal as of right. The claimant has now, pursuant to that determination, brought before the Court a summons for leave to cross appeal. It continues to assert that there is an appeal as of right. As the claimant did not in these proceedings challenge, by application for review, the decision of Sheller JA, this Court has not concerned itself with that assertion.

The matters of fact raised by the proposed cross appeal are substantial. The Court has been told that the appeal to the Court will proceed, as it must, as of right. It is therefore more economical of time for the Court to stand over the summons for leave to appeal to be determined by the Court which is to hear the appeal. There are discretionary considerations which are raised by the cross opponent, and the opponent in the application for the cross appeal, suggesting that considerations of delay and the conduct of the cross appellant are such that the Court would not provide leave.

The Court will not determine those matters now. It leaves all such questions of whether leave should be granted, and if so on what terms, to the Court that will hear the application for leave to cross appeal at the time of the return of the appeal, which the opponent brings as of right.