Linfox Transport (Australia) Pty Ltd & Anor v Toohey [2004] VSCA 122

Court of Appeal (Vic)|2004-06-11|Before: BATT and EAMES, JJ.A.

For the reasons discussed above, it follows that I also agree that this is a very appropriate case for the hearing of the appeal to be expedited.

There has been discussion on the question of costs. Both sides agree that whatever costs are awarded should be costs in the appeal and we think that right. Mr Solomon sought that only his client's costs be costs in the appeal, but we think, for reasons indicated in argument, and because the necessity for today's hearing stems from uncertainty about the legislation itself, that the costs of both sides should be costs in the appeal.

The orders of the court will therefore be as follows.

(a) That the appeal in proceeding No.3714 of 2004 is on foot.

(b) That notice of appeal was duly served on the solicitors for the respondent on 8 April 2004.

2. The court directs that the appeal be given such expedition as the Registrar can afford it.

3. The court orders that the costs of the applicants and the respondent of and incidental to the summons filed on 13 May 2004 on behalf of the applicants be costs in the appeal.

[1] Unreported, Full Court, 13 December 1991.

[2] Unreported, Full Court, 7 October 1994.

[6] Three others may be mentioned. First, s.51, stating the orders which the Supreme Court (that is the Court of Appeal) may make on appeal, precedes, illogically, s.52, which confers the right of appeal and, impliedly, the jurisdiction to hear and determine appeals. Secondly, assuming that s.51(1) is wide enough to authorise the Court of Appeal to order that a proceeding be remitted to the County Court for further hearing, sub-s.(8) seems unnecessary. In any event, review by the County Court is not necessary on the making of every determination by the Court of Appeal. Thirdly, the point of, indeed the cross-reference in, sub-s.(5) seem to defy explanation.

[12] As to which see Director of Public Prosecutions v. His Honour Judge Fricke [1993] VicRp 27; [1993] 1 V.R. 369 at 372.

Supreme Court (General Civil Procedure) Rules 1996

Supreme Court (Miscellaneous Proceedings) Rules 1998

Supreme Court (General Civil Procedure) Rules 1996

Supreme Court (Miscellaneous Proceedings) Rules 1998

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