DALEY INVESTMENTS PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA LTD [1995] NSWCA 112

DALEY INVESTMENTS PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 26 June 1995

[1995] NSWCA 112

Mahoney JA. This is an application for, as it is styled, leave to file a notice of cross-appeal in a matter in which an appeal has already been filed against a judgment of Hodgson J given on 24 March 1995. The form of the cross-appeal that is sought to be filed is referred to in the affidavit of Mr David John Hoggett of 8 June 1995. The draft document is annexed to that affidavit.

The question arising is whether it is necessary, for the purposes of Pt 51 r 13 or otherwise, to file a notice of cross-appeal in order to raise matters that have been adverted to in that draft notice of cross-appeal. I must confess that I am at the moment in a state of doubt as to whether it is necessary to raise the matters by way of cross-appeal.

Judgment has been given by Hodgson J against the appellant. It has lodged a notice of appeal in relation to a number of matters. His Honour, in the course of his judgment, said in effect that if he was wrong in deciding against the appellant then he would have decided other issues raised in the judgment in the manner that he hasreferred to in his judgment. It is against those last-mentioned matters that the notice of cross-appeal is desired to be filed. As I have said, I am not sure that a notice of cross-appeal is necessary in order to raise those matters in that no orders were made pursuant to the findings that were or would then be made.

However, obviously it is desirable that the parties be in no doubt as to whether the matters referred to in the notice of cross-appeal may be raised on the appeal and they should be in no doubt but that the relevant evidence relating to those matters should be in the appeal papers in order that, in due course, the matters can be dealt with finally upon the hearing of the appeal. If and insofar as a notice of cross-appeal is necessary for that purpose, I am of the opinion that leave should be given to file it.