New South Wales Court of Appeal CITATION : Felk Industries Pty. Limited v. Mallett & Anor. [2004] NSWCA 175 HEARING DATE(S) : 4 June 2004 JUDGMENT DATE : 7 June 2004 JUDGMENT OF : Giles JA at 1; Hodgson JA at 1 DECISION : Leave to appeal should be granted. The plaintiff should have leave to cross-appeal against his employer, so that he can recover an additional sum (which would appear to be in the order of $62,809.00) if the occupier's appeal is successful. The costs of the application for leave are to be costs in the appeal. CATCHWORDS : APPEAL - Leave to appeal - Judgment apportioned as between defendants, so that judgment against claimant below threshold for appeal as of right - Discretionary considerations. Built Interiors Pty. Ltd. v. Three Dinosaurs Pty. Ltd. [2003] NSWCA 290 CASES CITED : Dunn v. Ross Lamb Motors [1978] 1 NSWLR 26 Gillard v. Hunter Wire Products Pty. Ltd. [2001] NSWCA 450 Papatonakis v. Australian Telecommunications Commission (1985) 156 CLR 7 Felk Industries Pty. Limited - claimant PARTIES : Barry Ralph Mallett - first opponent Newcastle Fire Extinguisher Service Pty. Limited - second opponent FILE NUMBER(S) : CA 40558/03 Mr. J. Sleight for claimant COUNSEL : Mr. S.J. Harben SC with Mr. P. Cummings for first opponent Mr. G. Walsh for second opponent Hunt & Hunt, Sydney for claiment SOLICITORS : Braye Cragg, Newcastle for 1st opponent Timothy J. Doubleday, Sydney for 2nd opponent LOWER COURT District Court JURISDICTION : LOWER COURT DC 1012/01 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40558/03 DC 1012/01 GILES JA HODGSON JA Monday 7 June 2003 FELK INDUSTRIES PTY. LIMITED V. MALLETT & ANOR. Judgment 1 THE COURT: On 13 Jun 2003, Williams DCJ made orders in proceedings in which the plaintiff (the first opponent) had sought damages against his employer (the second opponent) and against an occupier of premises at which he was injured (the claimant). These orders included a verdict and judgment for the plaintiff against his employer in the sum of $251,235.20 and against the occupier in the sum of $71,711.20. The occupier seeks leave to appeal against the judgment against it. 2 One basis on which leave is sought is that there should have been judgment against the occupier for the full amount of $322,946.40, with apportionment being dealt with in orders operating as between the two defendants; and that a party should not be deprived of an appeal as of right because incorrect orders are made. 3 Against this, it is put that judgments can be entered in different amounts, even as between joint tortfeasers: see Caltex Oil (Australia) Pty. Limited v. Excel Petroleum (NSW) Pty. Limited (1984) 155 CLR 72. Furthermore, no objection was taken to the orders made in this case. It was also put that the employer had in fact paid the amount of its judgment, so that, even if there had been a judgment against the occupier for the full amount, only $71,711.20 could be in issue on this appeal. The amount in issue had to be considered realistically: Dunn v. Ross Lamb Motors [1978] 1 NSWLR 26; Gillard v. Hunter Wire Products Pty. Limited [2001] NSWCA 450 at [11]; Built Interiors Pty. Ltd. v. Three Dinosaurs Pty. Ltd. [2003] NSWCA 290 at [34]. 4 In our opinion, the plaintiff was entitled to a judgment against the occupier for the full amount of $322,946.40; and the occupier would have had an appeal as of right if this had been done. It seems that, if the plaintiff had objected to the course taken, it would have been an error of law not to have given that verdict and judgment. However, it may be questioned whether it was is an error of law where, as apparently occurred in this case, all parties acquiesced in the course taken. 5 In the present case, as noted above, the employer has paid the amount of the judgment against it; so whatever the judgment against the occupier had been, the amount payable by the occupier could not now be greater than $71,711.20. There is some force in a submission made for the claimant that a right of appeal should be determined as at the date of judgment or at the latest as at the date of institution of the appeal, and should not depend on what a third party might do; and we are inclined to the view that, if there had been a verdict and judgment against the occupier for something over $320,000.00, the fact that at some time later the other defendant paid $250,000.00 would not deprive the occupier of its right of appeal. 6 But that is not the position here. The judgment against the occupier was for $71,711.20; and whether this was strictly correct or not, all parties apparently acquiesced in this. In those circumstances, in our opinion, payment of the employer's share, so that on any realistic view of the matter there is only $71,711.20 in issue, greatly reduces the force of the discretionary consideration that the original judgment could, and perhaps should, have been for something over $320,000.00. 7 However, there is a quite significant amount in issue, and the occupier has an arguable ground of appeal. In our opinion, it is arguable that it is part of the expected expertise of a person engaged to service a fire extinguisher that that person know what access to the fire extinguisher is required: cf. Papatonakis v. Australian Telecommunications Commission (1985) 156 CLR 7 at 30. To some extent, this was recognised by the primary judge, at p.12 of his judgment. If so, it is also arguable that the occupier was not in breach of any duty owed by it, as occupier or otherwise. 8 For those reasons, in our opinion leave to appeal should be granted. The plaintiff should have leave to cross-appeal against his employer, so that he can recover an additional sum (which would appear to be in the order of $62,809.00) if the occupier's appeal is successful. The costs of the application for leave are to be costs in the appeal. ********** Last Modified: 06/15/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.