Fletcher Constructions Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2000] VSCA 158

Court of Appeal (Vic)|2000-09-01|Before: TADGELL and BATT, JJ.A.

The application on behalf of the appellant made today ore tenus, however, should be acceded to and leave to amend the notice of appeal should be granted. When attention is given to the formulation of any amendment to the notice of appeal, I hope that attention will be directed to the matters that I have mentioned and that, in particular, the lessons referred to in the reasons of Phillips, J.A. to which I have referred will be heeded.

It is also desirable that in a case like this there should be directions given by the Court of Appeal for the conduct of an appeal of this kind, which will depend, it seems, on a close inspection of the evidence and a comparison with the reasons ultimately to be provided by the judge.

1. Leave to the appellant to file and serve an amended notice of appeal as it may be advised within 28 days after the provision by the trial judge of his final reasons for judgment.

2. Direct that the appellant, within 28 days of filing and serving any amended notice of appeal, file and serve a summons for directions as to the conduct of the appeal.

3. That the costs of this application be costs in the appeal.

I agree, and I agree with the orders proposed.

I only add that, in addition to attacking the notice of appeal for its deficiencies, the respondent to the appeal argued that, on the merits, the various grounds that might raise a point which in form is arguable could not succeed because the facts were so strongly against the appellant on those grounds. In my view, a Court of two could not rule upon such arguments and prevent an appellant from challenging by way of appeal findings of fact made below. They were arguments of a nature different from those which the Court of Appeal upheld in Burgess v. Stafford Hotel Ltd[5].

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