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. It is accepted that a second further amended statement of claim has been filed. The Court has been informed, and I shall assume, that that document deals not with any of the matters that were before the judge and dealt with on 8 December 1995 but with the further claims which the plaintiff sought to make being, as the Court has been informed, claims based upon statutory provisions. It is not necessary to categorise them further. In these circumstances Mr Cotman has submitted that the notice of appeal which has been filed (which, as I have said, goes essentially to the matters referred to in the judgment of 8 December 1995) is an appeal against final orders. It is submitted that what happened on 8 December and 13 December resulted in the making of final orders in respect of a distinct claim or claims made by the plaintiff and that the fact that subsequently leave was given to set up further and separate claims in an amended statement of claim, does not mean that the original dismissal was an interlocutory order. He submits that it was a final order against which the notice of appeal can be filed. The Court has considered the submissions that have been made but is of the opinion that, having regard to the existing state of authority governing this matter and the decisions of the High Court in cases such as Carr v Finance Corporation 2 UNREPORTED JUDGMENTS ofAustralia Ltd (No 1) (1980-81) 147 CLR 246 and Computer Edge Pty Limited v Apple Computer Inc (1984) 54 ALR 767, the orders that were made by the judge against which the notice of appeal seeks to bring in question, were interlocutory orders within the terms of s 101 of the Supreme Court Act. The fact that the proceeding was not finally determined but that a further statement of claim was allowed to be filed albeit in relation to additional claims results, in my opinion, in the findings and orders that were originally made being interlocutory orders within the state of the authorities to which I have referred. In the circumstances therefore, it would appear to follow that the notice of appeal that has been filed is incompetent. It has not been sought to obtain leave to appeal in relation to the matters there referred to. I do not suggest that leave should have been sought. It would perhaps not be appropriate for leave to be given in the present circumstances. That is not a matter before the Court. In the circumstances, therefore, the result is that the notice of appeal which has been filed is incompetent and an order should be made for it to be struck out as incompetent. Tf that be the order of the Court then a question will arise as to the costs of the present application. That is a matter that can be dealt with subsequently. Powell JA. I agree. Mahoney P. If the order be then, gentlemen, that the notice of appeal be struck out as incompetent, it would appear to follow that the appropriate order for costs is that the respondent to this application pay the costs of the application. Do you have anything to say about that Mr Cotman? COTMAN: No. MAHONEY P: The order for costs will be as I have indicated. Orders accordingly.