GULABRAI v MATHEW [1995] NSWCA 187

GULABRAI v MATHEW SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirsy P, MAHONEY JA and HANDLEY JA 3 April 1995

[1995] NSWCA 187

PRACTICE — Court of Appeal — leave to appeal — summons premature — final orders due shortly — held: Remaining issues to be stood over to be heard with any appeal by right.

Kirby P. The Court has before it a motion and a summons for leave to appeal. The proceedings were before the Court on 13 March 1995 when the Court was differently constituted. The hearing was then adjourned to this date for, amongst other reasons, the listing of the hearing of the appeal on the same day as Derrawee Pastoral Company Pty Ltd v McConachie which was thought to raise common questions.

When the list was called this morning the Court was told that Derrawee had been settled. The Court received certain affidavits. It permitted the claimant to move on a summons which had been filed after it had been called to the claimant's notice on 13 March 1995, by the Court, that if he were to proceed with challenges to the order of Brownie J, the claimant would need leave of the Court. The summons, then filed, challenges decisions of BrownieJ given on two occasions, namely, 22 August 1994 and 6 September 1994.

Each of the proceedings is clearly such as requires leave to appeal. The decision on 22 August 1994 concerned only an order for indemnity costs. The claimant still wishes to proceed with that challenge. In respect of that challenge it is appropriate to stand the summons over to a later date.

The Court has been informed that, pursuant to the second set of orders of Brownie J of 6 September 1994, his Honour remitted to Master McLaughlin the determination of the finding of damages and compensation in the proceedings. Master McLaughlin has not yet published his decision in that case. It is this consideration which makes the order interlocutory. The challenge to it also requires leave. The Court was perfectly right to point this out to the claimant on 13 March 1995. I have now explained the Court's reasons for that holding.