BRYANT v. FATIMA PTY. LIMITED [1995] NSWCA 63

BRYANT y. FATIMA PTY. LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirpy P, PRIESTLEY JA and POWELL JA 1 May 1995 [1995] NSWCA 63

PRACTICE AND PROCEDURE — Court of Appeal — notice of appeal — irregular joinder of parties and grounds in appeal against different orders affecting different parties — held: strike out grounds and parties relevant to earlier orders — reservation of leave to move court for leave to appeal out of time from earlier orders.

Kirby P. The proceedings now before the Court are complicated.

Their complexities are revealed by the earlier transcript of proceedings in the Court, the earlier judgment of Mahoney JA and the exchanges between the parties recorded in the transcript of the proceedings heard before the Court, differently constituted, on 3 April 1995. By direction of the Court the last mentioned transcript was made available to the parties. However, apparently, through some mistake, it was only received as recently as Friday 28 April 1995.

Limiting the appeal before the Court

The proper course to be followed in these proceedings has been explained during the course of the argument of the present proceedings. For the reasons which have been elaborated by the Court, in particular by Handley JA. during the course of argument, it is clear that only grounds eight and nine of the present notice of appeal relate to the judgment of Young, J. of 27 July 1994. Only they should survive in the notice of appeal. All the other grounds of appeal, paragraphs one to seven and the orders sought in paragraphs one and two of theorders sought, should be struck out from the notice of appeal. They are not relevant to the judgment under appeal.

Challenge to earlier orders of the trial court

The Court has been informed that Mr Bryant and, insofar as it may be relevant, Rylegrove Pty Limited (Rylegrove) wish to challenge the earlier orders of Young, J. of 21 July 1993. Of course, those parties are now well out of time for the filing of a notice of appeal against those orders for Mr Bryant and Rylegrove. The Court has been told that an assumption was made that the proceedings were common, namely within the Court file ED 473 of 1992. The orders of Young, J. of 21 April 1993 were seen to be connected with the orders of 27 July 1994. It was assumed that the appeal, brought in August 1994, could raise, in challenges to the later orders, the objections which were held in relation to the earlier ones.