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. Whilst the summons correctly now seeks leave, such leave would not be granted upon that challenge at this time because shortly Master McLaughlin will give his reasons and make orders. That step will finalise that part of the litigation. The claimant will then be able to appeal to this Court, as of right, against the orders of Master McLaughlin. In such appeal he will be able to appeal against any interlocutory orders made in the proceedings which are then finalised by Master McLaughlin's order. In these proceedings upon the summons, it is therefore premature to consider the challenge which the claimant wishes to bring against the order of 6 September 1994. That is clear enough today. It I may say so, it was also clear on 13 March 1995. Despite the foregoing, both parties agreed that the summons, so far as it challenges the order of 22 August 1994, should be stood over to a later date. The summons, insofar as it challenges the order of 6 September 1994, is premature. 2 UNREPORTED JUDGMENTS However, the claimant points out that the proceedings of 13 March 1995 concerned also the application for a stay of execution upon the costsorders made by Brownie J. The Court has been informed that Master McLaughlin has provided certain interlocutory relief and that he is also hearing a review of the determination of the costs. Whether or not the Master has provided formal orders staying the execution of the order for costs is not entirely clear. However, whether he has or has not, it is more appropriate that any application for a stay should be made to the Master, if such be needed. It should not trouble this Court. The issue, then, is whether the proceedings on 13 March 1995, being the only proceedings in respect of which we are now asked to make orders, were such that the Court should order that the claimant pay the costs of that day. In my opinion the Court should so order. The proceedings, insofar as they concerned challenges to the orders of Brownie J, were premature. Insofar as they concerned the application for a stay of execution of the costs order, they could have been made elsewhere, either to Brownie J or, in the events that have occurred, to Master McLaughlin. The orders which I therefore propose are: 1. Stand over the summons for leave to appeal in respect of the challenge which the claimant wishes to bring to the order of Brownie J of 22 August 1994 awarding indemnity costs, such summons to be stood into the list of the Registrar with a view to his fixing the date for the hearing of the summons on a date, so far as possible, convenient to the parties and, insofar as may be ascertained, after the decision of Master McLaughlin is given; 2. Dismiss the summons insofar as it challenges the orders of Brownie J of 6 September 1994; 3. Reserve the costs in the summons of this day to be determined by the Court which hears the summons stood over to pursuant to Order 1; and 4. Order the claimant to pay the costs of 13 March 1995 in this Court. Such are the orders of the Court. Orders accordingly. Counsel for the claimant: K Andrews Solicitors for the claimant: N G Cassim Counsel for the opponent: C R Evatt Jnr/ J Young Solicitors for the opponent: Carter Solicitors