Felk Industries Pty. Limited v Mallett

Felk Industries Pty. Limited (the appellant) sought leave to appeal a judgment of the District Court of New South Wales, which had apportioned liability between it and the respondent, Mr. Mallett. The dispute concerned the amount of damages awarded to Mr. Mallett, which, due to the apportionment, fell below the threshold for an appeal as of right.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal, considering the discretionary factors involved when a judgment against a claimant does not meet the statutory threshold for an appeal as of right. A secondary issue arose concerning the respondent's potential cross-appeal against his employer, should the appellant's appeal be successful.

The Court of Appeal considered that the threshold for an appeal as of right was not met, but that the circumstances warranted the exercise of its discretion to grant leave. This discretion was informed by the potential for a significant financial impact on the parties and the need to ensure a just outcome. The court also recognised the respondent's interest in cross-appealing to recover an additional sum from his employer if the appellant's appeal succeeded.

Consequently, the Court of Appeal granted leave to appeal to the appellant and also granted the respondent leave to cross-appeal against his employer. The costs associated with the applications for leave were to be costs in the substantive appeal.