PHOENIX FREIGHT SYSTEMS PTY LTD v TOKYU AIR CARGO COMPANY LTD [1996] NSWCA 427

PHOENIX FREIGHT SYSTEMS PTY LTD v TOKYU AIR CARGO COMPANY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 1 July 1996

[1996] NSWCA 427

Priestley JA. Phoenix Freight Systems v Tokyu Air Cargo Company Ltd presents a couple of curious problems.

An application before a Master was decided. From that decision an appeal lay, I am told by both parties before me today, to the Equity Division. A notice of appeal was filed and, by mistake, it was filed in the Court of Appeal registry. That mistake followed from the way in which the notice of appeal was entitled, namely 'In the Supreme Court of New South Wales, Court of Appeal'. In accordance with the appropriate rules and regulations at the time of the filing, an amount of $1670 was paid by the appellant to the court registry.

Subsequently, the solicitors for the appellant realised the mistake that had been made. They wrote to the solicitors for the other side asking, in effect, for cooperation in correcting the mistake.

The solicitors for the other side wrote back, taking the view, for reasons set out in their letter, that the notice of appeal was incompetent and that the procedure the appellant's solicitors were proposing to follow was not appropriate for correcting the situation. The respondent's solicitors then fileda notice of motion raising the question of competency as the Court of Appeal rules require in respect of a respondent who wishes to refer to such a question.

It thus turns out that I have two motions before me today: the appellant's motion which simply asks that the notice of appeal be transferred to the Equity Division and that the filing fee be refunded; and a motion by the respondent asking that the appeal be dismissed as incompetent.

Counsel have appeared for both the appellant and the respondent and are agreed that the matter can be put right in the sense that the appeal can be got into the Equity Division's list by one means or another. The means chosen by the appellant involves s 51(2) of the Supreme Court Act; the respondent says that is ineffective and repeats the argument in the letter and then says s 81 provides the answer.