ONE TEL PTY LTD v ASSOCIATED PRODUCTS PTY LTD [1996] NSWCA 411

ONE TEL PTY LTD v ASSOCIATED PRODUCTS PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P and POWELL JA 15 April 1996

[1996] NSWCA 411

Mahoney P. This is an application which comes before the Court in somewhat unusual circumstances. It appears that on 8 December 1995, his Honour Mr Justice Windeyer gave judgment in relation to a proceeding then before him and, as I infer or assume, dealt with all of the issues that were then before him on the existing statement of claim.

For some reason which does not appear in the material before us (I say that not by way of criticism but by way of recording the fact) his Honour did not proceed to make the orders that were set forth in the judgment — I refer to p 9 of the judgment — but on 13 December 1995 made orders which appear in a document bearing date 12 December 1995, copy of which I have initialled and will place with the papers. Those orders consist of pars | to 6, including par SA.

A notice of appeal has been filed, copy of which is before the Court, which (as I understand the matter) seeks to bring into question the findings that were made byhis Honour in his judgment on 8 December 1995. That notice of appeal has been filed upon the basis that it may be filed as of right.

However, the terms of the orders made on 13 December 1995 call into question whether there is presently an appeal as of right. The orders which have been made provided for the 'dismissal' of the further amended statement of claim which was apparently then before the judge and the dismissal of the summons which was before the judge. However, they provided for leave to be given to the plaintiff 'to file and serve a second further amended statement of claim against the defendant and Mr Paul Sangos within fourteen days' and for the proceeding to be listed for directions before the Registrar on 7 February 1996.