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. It does not seem to me to be necessary to try to decide which method is the correct one. The following orders should achieve the desired result. I make an order under s 51(2) of the Supreme Court Act that the proceedings commenced in the Court of Appeal by the notice of appeal shall, for all purposes, be well commenced on the date of commencement in the Court of Appeal, notwithstanding that the proceedings are assigned to a Division, and I order also that those proceedings be remitted to the Equity Division. LT also order, under s 81, that the failure to file a notice of appeal in the Equity Division shall be treated as an irregularity and shall not nullify the appeal proceedings, or any step taken in the appeal proceedings or any document in the appeal proceedings. 2 UNREPORTED JUDGMENTS As it is agreed that at least one of the procedures is correct, a decision between them would be relevant only for the purposes of the costs of the two motions. My view of the appropriate costs order would be the same, whicheverroute the procedure should have followed. That is why I said earlier I do not think it is necessary to decide between the two methods. I will make the costs orders I indicated during submissions, after I have dealt with the other somewhat curious problem; that is the matter of the filing fee. I have been told from the Bar table that so far as counsel are aware there is no filing fee required in the Equity Division. I am also told that it is debatable whether a judge of the Court of Appeal has power to order the refund asked for, it being a possibility at least that that power should be exercised, at least in the first instance, by the chief executive officer. On the facts before me I can see no reason at all why the filing fee should not be refunded. If a filing fee is required in the Equity Division, contrary to what counsel has been able to ascertain, then that filing fee will have to be paid when the documents go over to the Equity Division from the Court of Appeal Registry. I order that if there is such a filing fee to be paid, then the matter should not proceed in the Equity Division until it is paid. Rather than become involved in the rather recondite rules which would govern the question whether or not I have the power to order the refund, I have indicated to counsel the course I propose to follow and counsel has not objected to that course, and that is that I will stand over the notice of motion seeking the second order in the appellant's notice of motion and leave it to the appellant to seek an order for a refund from the chief executive officer. If that refund is made, then I direct that a letter be lodged with my associate stating that fact, and the matter will not further be listed. To guard against the possibility tha that does not happen, I stand this aspect of the notice of motion over until 12 August 1996. There will be no order for costs of any kind concerning the notice of motion so far as it concerns the second order applied for in the notice of motion, and further, the opponent to this notice of motion, that is therespondent in the appeal, is not required to take any further action in the notice of motion following the making of the orders I am making at the moment. The only party interested from here on is the appellant. Returning to the costs orders, these apply both to the appellant's motion and the respondent's competency motion. I have already made orders in regard to the appellant's motion. The only order remaining to be made there is that concerning costs, which is that the costs of the motion are to be part of the appellant's costs of the appeal, if the appellant succeeds in the appeal in the Equity Division. In the event that the respondent succeeds in the appeal, then there will be no order as to the costs of the motion; that is, in the event of the respondent succeeding, the parties will be left to bear their own costs of the motion. In regard to the respondent's notice of motion concerning incompetency, I make the same orders for costs in favour generally of the appellant as in the appellant's application. Orders accordingly.