Appeal Dismissed as Incompetent Due to Procedural Errors

In this case, the Court of Appeal dismissed an appeal as incompetent due to the appellant not having sought leave to appeal and the respondent not having applied to strike out the appeal as incompetent. The appeal was listed for hearing but was ultimately dismissed.

[ADDRESS] of Appeal

CITATION : [COMPANY] v [NAME] [2000] NSWCA 329 FILE NUMBER(S) : CA 40452/99 HEARING DATE(S) : 13 November 2000 JUDGMENT DATE : 13 November 2000

PARTIES : [COMPANY] - Appellant [NAME] - Respondent JUDGMENT OF : Sheller JA at 1; [NAME] at 12

LOWER COURT JURISDICTION : District Court LOWER COURT 100063/98 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

COUNSEL : [redacted] Respondent - [NAME] (Solicitor) SOLICITORS : [redacted] Respondent - [NAME] : SUPREME COURT PROCEDURE - where appeal incompetent - where appellant did not seek leave to appeal - where respondent made no application to have appeal struck out - adjournment not granted LEGISLATION CITED : N/A CASES CITED: N/A DECISION : Appeal dismissed as incompetent with no order as to costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40452/99 DC 10063/98

SHELLER JA [NAME], 13 November 2000

[COMPANY] v [NAME]

1 SHELLER JA: This appeal was listed for hearing this morning. Late last week the Court was informed in an informal manner that the parties regarded the appeal as incompetent and that this morning some application would be made to the Court. 2 When the matter was called on this morning, [NAME] appeared for the appellant and [NAME] for the respondent. [ADDRESS] was informed that the parties agreed that the appeal was incompetent and no leave to appeal had been sought.

Accordingly, on its face, Part 51 r25 applied. No formal application was made to the Court to grant leave to appeal and no formal application had been made by the respondent in accordance with r25 to have the appeal struck out as incompetent. [NAME] indicated that in some way, which was not entirely clear to me, he wished on behalf of his client to preserve its right to make an application for leave to appeal at some later date. It is not clear to me why, if such an application was to be made, it could not have been made today. 3 [NAME] fairly indicated that his client had not taken the steps set out in r25 to have the appeal struck out as incompetent. 4 It seemed to the Court that in effect [NAME] was seeking to have the appeal adjourned so that his client would have an opportunity to make an application for an extension of time and if granted, for leave to appeal. On that basis, [NAME] was invited to inform the Court upon what grounds he said the Court should, if that application were made, grant leave to appeal. A short adjournment was granted to enable [NAME] to put these submissions. 5 When the Court returned after the adjournment, [NAME] submitted that the amount awarded by the trial Judge for general damages was manifestly excessive. An amount was awarded for economic loss. [NAME] submitted that nothing should have been awarded for future economic loss. He also made a submission that the amount allowed by the trial Judge for out of pocket expenses was excessive. 6 We were referred to page 42 in the red appeal book where the quantum of the judgment is set out. The total judgment was for just over $150,000. The appellant's quantum in the comparative list was just over $72,000. No doubt it was this difference that led to the concession that the appeal was incompetent. 7 There was nothing put before the Court which persuades me that this is a case in which the Court would, had an application been made, have granted leave to appeal. In large part, if not entirely, the submissions of the appellant proceeded on the basis of an attack upon findings of fact made by the trial Judge. Particularly was this so in relation to what was said about the findings as to future economic loss. 8 The amounts involved are, relatively speaking, not large. In areas such as general damages, there is always a range. Nothing was said that would persuade me that the award made was outside the appropriate range. 9 In all the circumstances, I do not think that sufficient has been shown to justify the granting of an adjournment of these proceedings to enable a leave application to be made. 10 I cannot leave this matter without remaking upon the unsatisfactory way in which this appeal has been dealt with by the parties. For some time now it was known that the appeal had been set down for hearing today. As I have said, it was only late last week that any indication was given to the Court that an application might be made on the basis that the appeal was incompetent. The whole rule system and method of setting down appeals depends upon the parties ensuring that when the date for hearing is reached, the appeal is ready to proceed. There are obvious reasons why this is so, not only so that the Court can proceed to hear appeals in an orderly manner, but also so that other appeals are not delayed by what effectively today has been a waste of a court hearing day. No satisfactory reason was put before the Court. No evidence was put on to explain the way in which in this case this matter was handled by those representing the parties. For my own part, I am putting it mildly when I say that I think it is less than satisfactory. I hope that those representing these parties will not allow such a situation to arise in future cases with which they are associated in this Court. 11 In my opinion it is appropriate that this appeal be dismissed as incompetent. It seems to me that since no application was made by the respondent as required under r25 there should be no order made as to the costs of the appeal. 12 [NAME]: I agree with the orders proposed and with the reasons given by Mr Justice Sheller. 13 SHELLER JA: The order of the Court is the appeal is dismissed as incompetent, with no order as to costs. *****

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