PYE v BUTTERFIELD CHEESE FACTORY PTY LIMITED [1995] NSWCA 383

PYE v BUTTERFIELD CHEESE FACTORY PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, SHELLER JA and POWELL JA 5 June 1995

[1995] NSWCA 383

PRACTICE & PROCEDURE — summons for leave to appeal — correct process is summons for extension of time within which to appeal as of right — held: Extension of time granted on terms as to costs.

Kirby P. This matter came before the Court inappropriately as a summons for leave to appeal when what was really required was an extension of time within which to appeal as of right. This is a common confusion on the part of the legal profession which should be called to notice. The considerations raised by the two procedures are quite different.

The claimant was out of time by a very short period. No prejudice is shown. The matter raised by the appeal is a short point of law. The claimant should have the opportunity of advancing that point in the Court. However, the price of that privilege must be that the claimant pays the opponent's costs of and incidental to the summons and motion.

It is appropriate in this case to dispense with appeal books and to order that the claimant, as appellant, file a compilation of all relevant documents, inlieu of the appeal books. That should be done within a period of 28 days from today. The Registrar should place this matter in the short appeals list with a view to its being heard with a measure of expedition.

The orders of the Court are:

1. Extend time within which to bring the appeal from the decision of Judge Moran until today's date deeming the notice of appeal to have been filed within time;

2. Order that the claimant pay the opponent's costs of the summons and of the motion;

3. Dispense with the rule of Court relating to the filing of appeal books with the intention the opponent will file a compilation within 28 days and serve same on the opponent;