George Stanley Copping (Plaintiff L), Faye Joyce Copping, Layton Saxon Copping, Neville George Copping, Wayne Malcolm Copping and Perball Pty Ltd v ANZ McCaughan Ltd (Defendant 1), Galliott Pty Ltd (Third Party 1),

[1994] SASC 4784

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Practice and procedure - costs - appeal as to costs - Following the trial, the defendant, against whom an order for costs had been made, lodged a cross-appeal as to costs only, without first obtaining leave under Supreme Court Act 1935s.50(2) (b) - a subsequent application for leave made to the trial Judge was refused and the notice of appeal, to the extent that it related to costs, was struck out - the defendant lodged a further purported notice of appeal to the Full Court against the striking out of the earlier notice, on the ground that the appeal lay as of right - application by the plaintiffs to strike out the further notice of appeal as incompetent - questions directed to be argued before the Full Court. Supreme Court Act 1935 ss 49 and 50; Supreme Court Judicature Act (UK) (1873) (36 and 37 Vict) Ch 66, s49; Supreme Court Judicature (Consolidation) Act 1925 (UK) s31(1); Supreme Court Practice (Victoria) (Butterworths) (1973) 58.1.22(b); Supreme Court Act (NSW) 1970 s101(2) (c) and Supreme Court Rules 84.12, 94.02, 94.03, 95.08, 97.02(1). Donald Campbell and Co Ltd v Pollak (1927) AC 732; Bank of Australasia v Herrick (1886) 12 VLR 832; Snelling v Pulling (1885) 29 Ch D 85; Trams Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312; House v The King
(1936) 55 CLR 499; Cretazso v Lombardi (1975) 13 SASR 4; Rieben v Justices for the Yorke Peninsula District and Ors (PC) (1908) AC 454; Civil Service Co-operative Society Ltd v The General Steam Navigation Company (1903) 2 KB
756 and Southern Resources Ltd and Ors v Residues Treatment and Trading Co Ltd and Ors (1991) 56 SASR 455, considered.

Courts and judges - disqualification of judge - Defendant contended that trial Judge should not hear application to strike out notice of appeal as to costs of the trial - held that no ground which might properly lead to disqualification was made out. Paringa Mining and Exploration Co Pty Ltd v North Flinders Mines Pty Ltd and Ors (No 2) (1988) 81 ALR 609, considered.

HRNG ADELAIDE, 13, 19 September 1994 #DATE 5:10:1994

Counsel for plaintiffs:     Mr S Tilmouth QC

Solicitors for plaintiffs:    Wallace Degaris and Co by their
  agents White Berman and Co

Counsel for defendant:        Mr N Rochow with him
  Mr D Kennelly

Solicitors for defendant:     Knox and Hargrave

Third parties:                No appearance

ORDER
Direct, pursuant to Supreme Court Act 1935s.49, that certain points be argued before the Full Court.

JUDGE1 PERRY J This is an application by the plaintiffs to strike out as incompetent a purported appeal by the defendant advanced by a notice of appeal dated 18 August 1994.

2. The purported appeal is against various orders made by me on 11 August 1994 pursuant to which I refused an application for leave to appeal against an order as to the costs of the trial of this action, together with other orders, which I had made on 23 May 1994.

3. A preliminary objection has been taken by the defendant to my hearing the matter, as opposed to another Judge. I will deal with that objection in the course of these reasons, but it is necessary first to set out some of the history of the matter.

4. The plaintiffs sued the defendant for losses alleged to have been suffered by them, in the first place with respect to an off-shore loan made by the defendant in October 1984 to the plaintiff Perball Pty Ltd ("Perball"), and in the second place, as to a hedge contract, as it was called, entered into between Perball and the defendant in April 1985.

5. The hearing of the trial extended over two months. I delivered judgment on 20 May 1994 (Judgment No 4557) in which I dismissed the plaintiffs' claim with respect to the off-shore loan but allowed it as to the hedge contract. I gave judgment in favour of Perball against the defendant on the hedge contract claim in the sum of $183,898.62 inclusive of interest.

6. Later, after hearing further argument, I gave judgment on certain third party claims brought by the defendant, but the outcome of those claims is not relevant for present purposes.

7. On 23 May 1994 I heard further argument on the question of costs. In the light of that argument, I ordered that Perball should recover from the defendant 75% of its costs to be taxed. In doing so, I observed:
    "The costs are to be taxed overall, not with respect to any
    particular issues, but in the net result it will recover
    75% of them.

There will be no order as to the costs of the individual
    plaintiffs."

8. I gave ex tempore reasons for that ruling, a copy of which is attached to these reasons.

9. By notice of appeal dated 3 June 1994 the plaintiffs appealed against the dismissal of their claim with respect to their entry into the off-shore loan agreement. By notice of cross-appeal dated 17 June 1994, the defendant complains of the order for costs and also as to the findings and order against the third parties.

10. That part of the notice of cross-appeal as deals with the order for costs is as follows:
    "The respondent/defendant hereby cross appeals to the Full
    Court against the order as to costs of the Honourable
    Justice Perry made on 23rd May 1994 whereby the Learned
    Judge:
    1. Ordered that the appellant/plaintiff Perball recover
    from the defendant 75% of its costs to be taxed;
    2. Ordered that costs be taxed overall and not with respect
    to any particular issues;
    3. Made no order as to costs related to the individual
    appellant/plaintiffs.

AND the respondent/defendant cross-appeals against
    paragraphs 1, 2 and 3 of the said order as to costs and
    seeks orders that:
    1. That the order as to costs be set aside.
    2. In lieu thereof an order should be made that the
    plaintiffs pay 75% of the defendant's costs of action to be
    taxed;
    3. In the alternative to 2, an order that the
    appellant/plaintiffs and the respondent/defendant each bear
    their or its own costs of action.

The grounds of cross appeal are:
    1. The Learned Judge erred in law in the application of the
    principles decided by the Full Court in Cretazzo v
    Lombardi.

2. The Learned Judge erred in the ruling on costs, and the
    exercise of his discretion pursuant to Section 40 of the
    Supreme Court Act and Rule 101.02(1) of the Supreme Court
    Rules miscarried, in that he failed to give weight or
    sufficient weight to the following matters:
    (a) that the appellant/plaintiffs George Stanley Copping,
    Faye Joyce Copping, Layton Saxon Copping, Neville George
    Copping and Wayne Malcolm Copping failed to make out any
    cause of action whatsoever and that their claims were
    dismissed;
    (b) that the appellant/plaintiff Perball Pty Ltd failed to
    make out any cause of action other than in relation to a
    secondary aspect of its claim, namely, the hedge contract;
    (c) that a substantial amount of time was occupied at the
    trial and a substantial volume of evidence was tendered in
    respect of causes of action on which the
    appellant/plaintiffs failed;
    (d) that the respondent/defendant was substantially
    successful upon the issues litigated at the trial.

3. The Learned Judge further erred in finding that had the
    hedge contract claim proceeded on its own, the trial would
    not have been very much shorter. The Learned Judge should
    have found on the evidence that had the hedge contract
    claim proceeded on its own:
    (a) the issues pleaded would have been substantially
    simpler and the pleadings would have been very much
    shorter;
    (b) the case would not have been such as to require the
    engagement of senior counsel;
    (c) the number of documents tendered as exhibits would have
    been considerably less;
    (d) there would have been no need for the calling of expert
    witnesses;
    (e) the trial would not have exceeded 5 days.

4. By reason of the errors referred to in grounds 1, 2 and
    3 and by reason of a failure to apply the general principle
    that costs should follow the event, the ruling on costs:
    (a) was made contrary to principle and the exercise of
    discretion in respect of the question of costs miscarried;
    (b) alternatively the order as to costs was made as a
    result of failure to exercise the Court's discretion
according to law." The notice of cross-appeal, insofar as it dealt with the orders as to costs, was not issued in pursuance of any leave given by the Court. On the face of it, and subject to arguments which I will come to in due course, this would appear to have been contrary to s.50 of the Supreme Court Act (1935) the relevant parts of which provide:
    "(1) Subject to the rules of court an appeal shall lie to
    the Full Court against every judgment, including every
    declaratory judgment entered pursuant to section 30b of
    this Act and any final assessment made thereon, order, or
    direction of a judge, whether in court or chambers, and
    also from the refusal of any judge to make any order:

Provided that-
    (1) ...
    (2) No appeal shall lie without the leave of the judge from
    any order-
    (a) ...
    (b) as to costs only which by law are left to the
    discretion of the judge.
    (3) ..." It appears that during the course of a subsequent hearing before a Master on another question, namely, an application for a stay of the judgment, the plaintiffs intimated that the cross-appeal as to costs having been brought without leave, they would contend that it was incompetent.

11. In response to that intimation, by notice dated 9 August 1994, the defendant sought leave to cross-appeal against the order for costs, and an extension of the time within which to seek leave to cross-appeal. I heard argument on that application on 11 August 1994, following which I refused leave to appeal. I gave ex tempore reasons, a copy of which is also attached to these reasons. The formal order was: "So much of the notice of cross-appeal as relates to the order for costs is struck out."

12. The application for leave to appeal was supported by an affidavit of Mr Kennelly in which he states, inter alia that the defendant "... now makes application for leave insofar as it may be necessary to obtain it to be able to prosecute its cross-appeal."

13. In the course of his submissions Mr Kennelly advanced the argument: "If I can explain our contention as to s.50, we say, based on the authorities, that an appeal lies as of right against an order for costs so far as it concerns error of law, but not (sic) within the discretion of the trial Judge." He said that he relied for that contention upon the decision of the House of Lords in Donald Campbell and Co Ltd v Pollak (1927) AC 732.

14. At that time I was not persuaded that there was any reason to deal with the matter other than on the footing that the cross-appeal as to costs required leave, and as I did not think that the circumstances justified the granting of leave for the reasons which I gave at that stage, I refused leave.

15. It will be noted from the reasons which I gave, and in particular the exchange which followed between me and Mr Kennelly after I had indicated the order which I proposed to make, that I pointed out to him that the defendant had every right to apply to the Full Court for leave to appeal, which application would be considered in private - see R 94.02:
    "Where an application for leave to appeal has been refused
    by the judge, an application for a similar purpose may be
    made to the Full Court within fourteen days from the date
    of refusal or within such extended time as the judge or the
    Full Court shall allow." (And see R 94.03.)

16. At that stage, my attention was not drawn to the annotation to R 94.02 which appears in Lunn Civil Procedure South Australia, Butterworths, page 10,278. Subsequently I have observed that this note reads:
    "This rule only applies to applications for leave under
    s.50(3) of the Supreme Court Act 1935 and not to
applications under s.50(2) of that Act as there is no right
    to bring an application for leave to appeal in respect of
the matters in s.50(2): Bank of Australasia v Herrick
(1886) 12 VLR 832; Snelling v Pulling (1885) 29 Ch D 85".

17. S.50(2) dealing with appeals as to costs states: "No appeal shall lie without the leave of the judge from any order ..." whereas s.50(3) commences with the words: "No appeal shall lie without the leave of the judge or of the Full Court from - ..."

18. It is likely that s.50(2) was based on s.49 of the Supreme Court Judicature Act (UK) (1873) (36 and 37 Vict) Chapter 66, s.49, which provided:
    "No order made by the High Court of Justice or any Judge
    thereof, by the consent of parties, or as to costs only,
    which by law are left to the discretion of the Court, shall
    be subject to any appeal, except by leave of the Court or
    Judge making such order."

19. The decisions in Snelling v Pulling and Bank of Australasia v Herrick, referred to in the note which I have cited from Lunn, and which I deal with at greater length in due course, support the view that it is only the judge from whose decision as to costs it is sought to appeal who is able to give leave to appeal to the Full Court. S.49 of the Judicature Act (UK) (1873) expressly so provides. So does the Supreme Court Judicature (Consolidation) Act 1925 (UK) which provides:
    "S.31(1) No appeal shall lie- ...
    (h) the leave of the court or judge making the order, from
    an order of the High Court, or any judge thereof, made with
    the consent of the parties or as to costs only which by law
    are left to the discretion of the court."

20. Although s.50(2) of the Supreme Court Act 1935 does not use the expression "leave of the court or the judge making such order", as I have pointed out, it does use the expression "the judge" as opposed to the words in ss.(3) "the judge or of the Full Court".

21. It seems to me that the legislative intention manifest in s.50(2) was to replicate the provisions in the Judicature Acts (UK) and to confine the giving of leave to appeal from an order as to costs, where the costs are in the discretion of the judge, to the judge making the order. If the judge making the order does not give leave, there is no ability to seek leave from the Full Court. R 94.02 is not of application in such a situation. That, I think, was intended to be the effect of the note which appears in Lunn (op sit) at (R
94.02.5), although where the learned author uses the words "there is no right to bring an application for leave to appeal in respect of the matters in s.50(2)", it would be more accurate to say that there is no right to bring such an application other than to the judge who has made the order from which leave to appeal is sought.

22. It follows that the observation, which I made to counsel for the defendant when I refused leave to appeal from my order as to costs, that the application for leave to appeal could be renewed before the Full Court, was wrong.

23. That, however, gives no reason to reconsider my decision. I took the view that it was not a proper case for leave to appeal. That view could not be altered by reason of the fact that the defendant either had or did not have a right to apply for leave elsewhere.

24. In any event, the defendant did not attempt to seek leave from the Full Court. Indeed, its contentions before me agree with what I have said so far about the effect of s.50(2). Mr Rochow said during the course of argument, after referring to the note in Lunn: "In other words, once your Honour has refused leave on ... matters of discretion, notwithstanding what your Honour perceived to be the case when your Honour heard my instructing solicitor on the cost occasion, we are indeed out of court."

25. Instead of seeking leave from the Full Court, by further purported notice of appeal dated 18 August 1994 (court file document 205), the defendant appeals to the Full Court against the order made by me on 11 August 1994 whereby I struck out so much of the defendant's notice of cross-appeal dated 17 June 1994 as related to the order for costs.

26. In response, the defendant seeks an order, inter alia: "The order striking out the said notice of cross-appeal be set aside"

27. The grounds of appeal are:
    "1. The learned Judge erred in law in deciding that it was
    a necessary consequence of his refusal of leave to appeal
    that the notice of appeal be struck out.

2. That the learned Judge erred in law in deciding that no
    appeal could be brought by the defendant against the said
    order for costs on grounds of error of law.

3. That the learned Judge erred in deciding that the
    defendant's appeal against the said order for costs was not
    maintainable without leave."

28. It is that purported notice of appeal which is the target of the plaintiffs' present attack. The plaintiffs argue, to quote the written submissions put forward by counsel for the plaintiffs at paragraph 7:
    "That notice is incompetent and an abuse of process since
    the appropriate mechanism was to proceed under RSC 94.02.
    .... It is also incompetent because the order of Perry J
    was consequential upon the refusal to grant leave to
    appeal, therefore it was an interlocutory order within the
meaning of s.50(3) of the Supreme Court Act. No
    application for leave to appeal the interlocutory order has
    been made. No leave has been granted."

29. The first argument, based on R 94.02, is for the reasons which I have already given, unsound. Subject to the defendant's contention that it may bring an appeal as of right to the Full Court, which I come to in due course, where leave is needed, having regard to the provisions of s.50(2) of the Supreme Court Act 1935, that leave may only be given from the judge whose order is appealed from. If leave is then refused, that is an end of the matter, and no further application for leave may be made to the Full Court.

30. The second point has more substance. It is important to note that the purported notice of appeal under attack in the application now under consideration does not in anyway seek to appeal against the refusal of leave to appeal. Relevantly, it only seeks an order that the striking out of the notice of cross-appeal be set aside. But if my order striking out so much of the purported notice of appeal dated 17 June 1994 as related to costs was an interlocutory order, leave to appeal from it would be necessary, having regard to s.50(3) of the Supreme Court Act 1935.

31. At one stage, Mr Rochow of counsel for the defendant contended that the order I had made striking out part of the notice of appeal of 17 June 1994, should be regarded as an order made under R 95.08. That rule provides:
    "(1) A respondent may apply on notice at any time to the
    Full Court or a judge for an order dismissing an appeal as
    incompetent.

(2) Upon the hearing of the application, the burden of
    establishing the competency of the appeal is on the
    appellant.

32. True it is that the present application by the plaintiffs is brought pursuant to that rule. But there was no application before me pursuant to Rule 95.08 when I refused leave to appeal on 11 August 1994. Neither did I, sub silentio, invoke or rely upon Rule 95.08. On the contrary, the striking out of part of the notice of cross-appeal was simply an incidence of my refusal of leave to cross-appeal with respect to costs.

33. As I pointed out at the time, having refused leave to appeal, the order would be nugatory unless the purported notice of appeal was struck out.

34. Subject to arguments which I will come to in due course that there was an appeal as of right, where there is a need to apply for leave to appeal, a party cannot be any better off by prematurely putting in a notice of appeal before obtaining leave. If the leave is then refused, it must necessarily be a consequence of the refusal that the purported notice in those circumstances be struck out.

35. Similar considerations must be borne in mind with respect to an application for leave to appeal against the striking out of the notice of appeal insofar as it related to costs. A party who is obliged to obtain leave to appeal in circumstances in which the decision of the judge from whom leave is sought is final (for example, where s.50(2) applies) could not circumvent the finality of the judge's order by prematurely lodging a notice of appeal, and then purport to appeal the striking out as of right and as a separate matter.

36. So that the present application could be considered on abuse of process grounds, but not for the reasons which were suggested, namely, that the defendant should have proceeded by seeking leave to appeal from the Full Court.

37. Dealing with the application, however, on the second of the two grounds argued in support of it, namely, that it was an interlocutory order, in my opinion, that submission is correct.

38. It is true that the characterisation of judgment or order as "interlocutory" within the meaning of s.50(3)(b) of the Supreme Court Act 1935 is apt in some cases to occasion no little difficulty. In advancing the argument that the striking out of part of the purported notice of appeal dated 17 June 1994 was a final order, as to which there is an appeal as of right to the Full Court, Mr Rochow referred to Trams Pty Ltd v The Grand Hotel Pty Ltd
(1993) 170 LSJS 312. That case did not concern the meaning of the words "interlocutory order or interlocutory judgment" in s.50(3) of the SupremeCourt Act 1935. Rather it concerned the meaning of the words in R 97.02(1):
    "Where the appeal is from the assessment of award of
    damages or any other final finding, decision, order,
    direction, award or judgment arrived at, made, given,
    directed, or entered on the trial or hearing of any
    proceeding, or of any question or issue, the appeal shall
    lie to the Full Court, and R 95 shall apply accordingly."

39. The question in that case was whether the order of a Master striking out a statement of claim and dismissing the action was a "final order" within the meaning of that rule, as if not, the appeal was to a single judge rather than to the Full Court.

40. In the course of his judgment, with which, relevantly, the other members of the Court agreed, Bollen J referred to various decisions of the High Court of Australia in which the distinction between interlocutory and final orders was considered in the context of the competency of appeals rather than the question of whether an appeal lay to a single judge or to a Full Court. To that extent the generality of his observations in that case are of relevance for present purposes.

41. During the course of his judgment Bollen J said (317):
    "The order disposed of the action. But as I say again, it
    is important to recognise that the order does not follow a
    determination of rights (see again per Gibbs CJ in Carr v
    Finance Co of Australia (supra): 'Finally determine the
    rights of the parties'). There has been no determination
    of the rights of the parties. There has been procedural or
    adjectival failure leading to a strong order."

42. While it is true that in one sense the striking out of part of the notice of appeal, if the matter rested there, meant that the defendant could not further pursue its challenge to the order made by me as trial judge as to costs, that is exactly the situation which s.50(2)(b) contemplates, namely, that the decision of the judge making a discretionary order for costs will be final.

43. If, on the other hand, as was separately argued by Mr Rochow, the defendant had a right of appeal against the order for costs which could be exercised independently of s.50(2), and was not caught by the need to obtain leave under that section, it may be that the striking out of the notice of appeal would then assume a different character. I am still inclined to think, however, that the striking out of a notice of appeal which is an appeal as of right, or part of it, is interlocutory.

44. It does not finally dispose of the cause of action sued on. It precludes the party affected by the order from proceeding further in its challenge to an incidental aspect of the case, namely, the question of costs. But every order which is not appealed from finally decides something. The fact that an incidental aspect of the litigation is finally decided does not mean that the order is necessarily other than interlocutory.

45. However, as I propose to direct that certain points be argued before the Full Court pursuant to s.49 of the Supreme Court Act 1935, I will direct that that point be argued as well.

46. It is the submission by Mr Rochow that there was an appeal as of right against the order for costs, which has caused me most concern. I suppose that if I had struck out part of an appeal which lay as of right on the misconception that leave was needed, it might be an appropriate case for the application of the power of the Court pursuant to R 84.12, pursuant to which I might "vary or set aside a judgment or order at any time if the justice of the case so requires". I would have thought that the potential for the exercise of the jurisdiction conferred by that rule existed if the defendant was otherwise prevented from getting to the Full Court when it had a right to appeal to that Court which was obstructed by an order made per incuriam. Indeed, Mr Rochow invited me to exercise my powers under R 84.12, if I was disposed to accept his argument that there was an appeal as of right.

47. But was there an appeal as of right?

48. In support of his contention that there was an appeal as of right, Mr Rochow referred to dicta in the case of Donald Campbell and Co v Pollak (1927) AC 732, and in particular the following passages in the judgment of Viscount Cave LC in that case (740):
    "My Lords, there are passages to be found, both in speeches
    made in this House and in text-books of authority, which
    lay it down in broad terms that an appeal as to costs only
    will not be entertained here; but it is plain that the
    rule, so stated, needs some qualification. For instance,
    an order made contrary to a statute which gives a party a
    right to his costs is clearly appealable: see Tod v Tod
    2 W and S 542. So, an order as to costs made by the Court
    of Appeal without jurisdiction must needs be subject to an
    appeal to this House, for otherwise the law might be broken
without redress; and Garnett v Bradley 3 App Cas 944 and
Huxley v West London Extension Ry Co 14 App Cas 26 are
    instances of such appeals. Why, then, should a decision of
    the Court of Appeal as to costs which is founded on a wrong
    view of the law - and in dealing with the preliminary
    objection this must be assumed to be the case - be exempt
    from review? .... In my opinion, the true rule is that,
    while this House will not review an exercise of discretion
    as to costs, it will not refuse to entertain an argument
    that an order as to costs is founded on an error of law."

49. That case arose in somewhat unusual circumstances. An action was ordered to be re-tried before a judge without a jury. On the re-trial, Branson J gave judgment for the defendant but without costs, mainly on the ground that the defendant had been guilty of certain misconduct relating to transactions giving rise to the proceedings. The defendant appealed without leave to the Court of Appeal from so much of the order of Branson J as related to costs. The Court of Appeal allowed the appeal on the ground that the trial judge had wrongly taken into account the course of proceedings in another action altogether, and "had, therefore, no materials upon which to exercise his discretion" ((1927) AC 734).

50. On a further appeal to the House of Lords against the decision of the Court of Appeal, seven Lord Justices of Appeal, presided over by the Lord Chancellor, considered and wrote extensive judgments on a preliminary argument that the appeal was incompetent as it was contrary to what was said to be the general practice of the House of Lords, namely, that it would not entertain an appeal as to costs only. The House of Lords dismissed that preliminary objection. But subsequently, when it went on to hear the appeal, it allowed the appeal and restored the order of Branson J.

51. Returning to the passage in the judgment of Viscount Cave LC, to which I have just referred, that clearly was a judgment as to the rule of practice of the House of Lords, and was not a judgment on the application of s.49 of the 1873 Judicature Act (the 1925 Judicature Act having been passed subsequent to the decision of Branson J).

52. Notwithstanding that, the propriety of the Court of Appeal entertaining the appeal was examined, having regard to the provisions of the Judicature Act. As to that aspect of the matter, the judgments are replete with an extended analysis of case law. It is unnecessary for me to attempt to go through the authorities. It is sufficient to say that for various reasons, not always expressed in the same terms, the Law Lords who heard the case during the course of the hearing of the preliminary objection, were of the view that if a trial judge making or refusing an order for costs has no materials upon which his or her discretion might be exercised, the order might in some circumstances be regarded as an order other than an order made in the exercise of a discretion and might, therefore, be appealable without leave.

53. If, for example, the order for costs from which an appeal is sought to be brought was made without jurisdiction, an appeal might be brought without leave (see Viscount Sumner at 766). It is clear that the critical question was whether or not Branson J had exercised a discretion at all: see, for example, per Lord Blanesburgh at 797:
    "Very different was the case here raised in the Court of
    Appeal and decided by that Court. It was that the learned
    judge, bound by law to deal with the costs of the action in
    the exercise of a judicial discretion, had, so far from
    doing so, avowedly based his order upon circumstances which
    in the submission of the defendant were not before him and
    to which in law he was not entitled to have any regard at
    all; that, in other words, on the learned judge's own
    avowal, the only discretion he had exercised was no
    discretion whatever. And that contention of the defendant
    he, in accordance with existing authorities binding upon
    the Court of Appeal, was entitled to raise by appeal. 'No
    doubt,' says Lord Halsbury in Civil Service Co-operative
    Society v General Steam Navigation Co, 'where a judge has
    exercised his discretion upon certain materials which are
    before him, it may not be, and I think is not, within the
    power of the Court of Appeal to overrule that exercise of
    discretion. But the necessary hypothesis of the existence
    of materials upon which the discretion can be exercised
    must be satisfied. In the present case, so far as the
    evidence before me goes, I can see no materials whatsoever
    upon which the learned judge could exercise a discretion at
    all ... That is not exercising a discretion upon materials
    properly before the judge; but it is depriving a litigant
    of rights of which he is by law possessed, upon grounds
    which it is not competent for the judge to treat as grounds
    for the exercise of his discretion. Under these
    circumstances I am of opinion that the cross-appeal must
    succeed, and that the defendants are entitled to their
    costs'."

54. Even given those observations, if the Court of Appeal had acted outside of its jurisdiction in entertaining the appeal, it was another question as to whether or not the jurisdiction of the House of Lords could properly be invoked in order to redress the matter: see per Lord Blanesburgh at 801:
    "For, if in truth the Court of Appeal had no right of
    interference in this case: if the jurisdiction which it
    purported to exercise was a usurped jurisdiction, then the
    duty of this House to restore the parties to their original
    position, if called upon to do so, would be clear. On that
    view of the matter the House would, as it has always done,
    merely be interfering with an order as to costs alone where
    the Court below had no jurisdiction over them."

55. The appeal to the House of Lords was not governed by s.49 of the Judicature Act: see Lord Atkinson at 777:
    "The rule that no appeal shall lie to the House of Lords on
    a question of costs alone is not a statutory rule. It is
    merely a rule of practice. It was shaped, adopted and
    applied long before our expeditious and effective Court of
    Appeal was created. Upon what rational principle this
    rule, if it be a desirable one, is to be applied to appeals
    to the House of Lords and not to appeals to the Court of
    Appeal, it is difficult to see."

56. When the House of Lords had disposed of the preliminary objection and went on to consider the appeal itself, it took the view that the Court of Appeal had departed from a proper application of s.49 of the Judicature Act: see per Viscount Cave who observed, after referring to a number of authorities
(810):
    "My Lords, these authorities appear to me to indicate a
    progressive tendency on the part of the Court of Appeal to
    review the exercise by trial judges of their discretion as
    to costs, with the result that the Court has travelled far
from the categorical terms of s.49 of the Act of 1873. The
    decision in the Civil Service Co-operative Society's case,
(1903) 2 KB 756, may no doubt be supported by the
    consideration, which obviously weighed with Lord Halsbury,
    that the trial judge in that case had taken action, not
    upon materials which emerged in the trial itself, but upon
    his personal view that no trial should properly have been
    insisted upon: and in such circumstances there may well
    have been ground for holding that he had not really
    exercised his discretion. But the fraudulent conduct of
    the defendants in King and Co v Gillard and Co, (1905) 2 Ch
    7, and in Edmund v Martell, 24 Times LR 25, the
    circumstance that the defendant had altered the character
    of the plaintiffs' property without consulting them, were
    surely sufficiently connected with the matters in dispute
    to entitle a judge having a wide discretion to take them
    into account when awarding costs; and the same may, I
    think, be said of the conduct of the defendant in Ritter v
Godfrey, (1920) 2 KB 47, towards persons who had suffered a
    real sorrow while one of them was under his care. Further,
    the language used in the last mentioned case by Atkin LJ
    and Eve J, who expressed the opinion that the trial judge
    in a non-jury case "must" give the successful defendant his
    costs except in certain cases which they defined, is
    difficult to reconcile with the statutes and rules which
    give him an absolute and uncontrolled discretion. Indeed
    the rules laid down in that case by those learned judges
    bear so close a resemblance to those which would guide a
    judge in determining whether there was "good cause" for
    depriving of his costs a successful defendant in an action
    tried with a jury, that, if they are held to be binding,
    little or no difference will be left between the power of a
    judge over costs in an action tried with a jury and that
    which the statute gives him in the case of a trial without
    a jury. A gloss upon the statute which leads to so
    complete a frustration of its purpose surely calls for very
    close and critical examination in your Lordships' House;
    and, although some of the cases cited have stood
    unchallenged for a good many years, I do not think that it
    is too late for this House, which now for the first time
    has seisin of the matter, to review them."

57. The "gloss upon the statute" was, of course, what His Lordship considered to be an unwarranted reading down of the proper application of s.49 of the Judicature Act. Viscount Cave went on to conclude (after referring to the trial judge's discretion as to costs (811):
    "This discretion, like any other discretion, must of course
    be exercised judicially, and the judge ought not to
    exercise it against the successful party except for some
    reason connected with the case. Thus, if - to put a
    hypothesis which in our Courts would never in fact be
    realized - a judge were to refuse to give a party his costs
    on the ground of some misconduct wholly unconnected with
    the cause of action or of some prejudice due to his race or
    religion or (to quote a familiar illustration) to the
    colour of his hair, then a Court of Appeal might well feel
    itself compelled to intervene. But when a judge,
    deliberately intending to exercise his discretionary
    powers, has acted on facts connected with or leading up to
    the litigation which have been proved before him or which
    he has himself observed during the progress of the case,
    then it seems to me that a Court of Appeal, although it may
    deem his reasons insufficient and may disagree with his
    conclusion, is prohibited by the statute from entertaining
    an appeal from it. ... Even if the rules laid down in
Ritter v Godfrey, (1920) 2 KB 47, were to be applied, I
    should find difficulty in holding that, in the present
    case, Branson J had no materials for the exercise of his
    discretion."

58. Lord Carson, in his speech, said (825):
    "I agree with the motion proposed by the noble Viscount on
    the Woolsack. ... Atkin LJ in the quotation made by the
    noble Viscount from his judgment in Ritter v Godfrey,
(1920) 2 KB 47, seems to lay down that such discretion must
    be exercised under formulated rules, which appear to me to
    leave very little "discretion" to the judge. It is not
    surprising, therefore, in this state of the authorities
    that protracted litigation as to costs only should ensue,
    involving in some cases a rehearing of the action and a
    reproduction of the evidence and documents used at the
    trial in order to enable a full inquiry as to whether the
    judge has acted within the rules laid down in the cases
    already decided. This, I think, is a result quite contrary
    to what was intended by the provisions of the Judicature
    Acts and the Rules of the Supreme Court already quoted,
    which drew a clear line as to costs where issues were tried
    before a judge and a jury respectively. It seems strange
    that in the course of so many authorities so little
attention has been given to s.49 of the Judicature Act,
    1873. The words of the section are clear and explicit, and
    deal not with the exercise of the discretion but with the
    question whether the discretion is conferred upon the
    judge, and, in my opinion, no matter what the practice may
    have been hitherto, we are bound to give full effect to it.
    The only question we have to determine under that section
    is: Was the order of Branson J as to costs made in a case
    where the costs are by law left to the discretion of the
    Court? The very basis of the appeal is that the learned
    judge had such a discretion and, indeed, that could not be
    disputed. In such a case the section says that the order
    made by the judge is not subject to appeal, and therefore
    neither the Court of Appeal nor this House is competent to
    entertain such an appeal.

Whilst, therefore, it is, of course, true that a judge
    ought to exercise his discretion judicially, whether he has
    done so or not is a question which cannot be raised on
    appeal as to costs, unless the judge gives leave as
    provided by the section."

59. It appears to me that on a proper reading of Donald Campbell and Co v Pollak there is no support for the wide proposition advanced by Mr Rochow for the defendant that all that a party wishing to avoid the clear intent of s.50(2)(b) has to do is to assert in a notice of appeal either an error of law or fact on the part of the trial judge who has made an order as to costs and refused leave. Such an approach would render the section nugatory, as an error of law or a misapprehension of fact are within the traditional formula pursuant to which an exercise of the discretion may be reviewed: see House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504:
    "The manner in which an appeal against an exercise of

    discretion should be determined is governed by established
    principles. It is not enough that the judges composing the
    appellate court consider that, if they had been in the
    position of the primary judge, they would have taken a
    different course. It must appear that some error has been
    made in exercising the discretion. If the judge acts upon
    a wrong principle, if he allows extraneous or irrelevant
    matters to guide or affect him, if he mistakes the facts,
    if he does not take into account some material
    consideration, then his determination should be reviewed
    and the appellate court may exercise its own discretion in
    substitution for his if it has the materials for doing so."

60. S.50(2) would be left with virtually no work to do, if it only precluded an appeal to the Full Court without the leave of the judge making the order as to costs, where the appeal was based on grounds other than the usual grounds upon which the exercise of a discretion might be challenged.

61. It seems to me that the only "error of law" which could possibly found an appeal without leave might be one which goes to the very jurisdiction to award costs at all. A close reading of the decision in Donald Campbell and Co v Pollack supports that view, particularly the remarks made when their Lordships came to deal with the appeal proper. I particularly emphasise the actual result of the case, which was to the effect that the Court of Appeal should not have entertained the appeal to it without leave, despite the nature of the complaints as to the manner in which Branson J had exercised the discretion as to costs, or, as had been suggested, had failed to exercise it at all.

62. I would add that s.50(2)(b) proscribes appeals without leave of the judge as to costs only which by law are left to the discretion of the judge. The section does not have anything to say about the actual exercise of the discretion, if exercised at all, and if it was exercised, whether it was exercised rightly or wrongly. The words "left to the discretion of the judge" relate to the nature of the jurisdiction exercised by the judge, and not to the manner of its exercise.

63. With those observations in mind, it does not seem to me that, however the matter is approached, it would be proper to regard the notice of cross-appeal dated 17 June 1994 lodged by the defendant as identifying matters which could possibly have enabled the defendant to proceed as of right and without leave.

64. Ground 1 of that notice referred to an alleged error of law in the application of principles decided by the Full Court in Cretazzo v Lombardi
(1975) 13 SASR 4. But the passage from that case upon which I had relied on making the order for costs was to be found in the judgment of Jacobs J at 16. At the conclusion of his judgment, Jacobs J said:
    "I wish merely to lend no encouragement to any suggestion
    that a party against whom a judgment goes ought,
    nevertheless, to anticipate a favourable exercise of the
    judicial discretion as to costs in respect of issues upon
    which he may have succeeded based merely on a success in
    those particular issues."

65. I do not read that passage, or the previous part of his judgment, as identifying any principle of law, but simply an indication of the manner in which it might be thought fit to approach the question of costs where there has been success on some issues and a failure on others.

66. In any event, I did not apply the thrust of His Honour's judgment in the sense that, in fact, I reduced the costs which the successful plaintiffs might otherwise have been entitled to, by reason of their failure on some issues. I am unable to see that the alleged error of law could possibly be said to take the matter out of s.50(2)(b). In any event, as I have said, an error of law simpliciter, not going to jurisdiction, does not take a party out of the section.

67. The other grounds of cross-appeal set out, being grounds numbered 2 and 3, clearly identify matters going to the discretion, and on no view of the matter could possibly be regarded as lying outside the section.

68. The conclusion which I have reached appears to me to be entirely consistent with authority.

69. I have already referred to the note in Lunn, Civil Procedure South Australia, Butterworths, page 10,278, and the cases of Bank of Australasia v Herrick and Snelling v Pulling referred to in that note.

70. In Snelling v Pulling the question was whether the trial judge was right in not giving the defendant costs. The Court of Appeal held that there was no appeal, and that they were, therefore, unable to review the decision of the trial judge. Cotton LJ said (29 Ch D 88):
"I am of opinion that s.49 of the Judicature Act 1873
    prevents us from considering whether the learned Judge was
    right or not in the order he has made as to costs. ... It
    has been said that in making this order, by which this
    defendant has been deprived of his costs, the learned Judge
    acted contrary to a well-known principle which has hitherto
    governed the practice of the Courts. ... but this order
    LXV, rule 1, does expressly state that the costs are to be
    in the discretion of the Judge, and we cannot say that the
case is not within s.49 of the Judicature Act 1873 which
    takes away the power of appeal, because we are told that
    the learned Judge exercised his discretion contrary to what
    was a well-known previous rule of practice."

71. Lindley LJ said:
    "I also am of opinion that these costs were in the
    discretion of the Judge, and that therefore this appeal
    cannot be entertained."

72. I infer that in Snelling v Pulling the trial judge did not make an order giving leave, and for that reason the Court of Appeal refused to entertain the appeal, notwithstanding the fact that it was suggested that the trial judge had exercised his discretion contrary to the appropriate principles.

73. Bank of Australasia v Herrick (1886) 12 VLR 832 concerned the same point. The plaintiff appealed to the Full Court of the Supreme Court of Victoria from so much of the judgment given at the trial as directed that the defendant should not pay costs. In their joint judgment, Williams, Holroyd and a'Beckett JJ observed (835):
    "The learned judge who tried the case had a discretion as
    to granting or refusing costs, and the appellant has not
    obtained from him leave to appeal from his decision. We
    have therefore no jurisdiction to entertain the appeal.
    Whether he exercises his discretion from right or wrong
    reasons, or whether he exercises no discretion at all,
    there can be no appeal unless leave to appeal was given
    .... That is the proper construction of s.27 of the Act,
    and the decisions in England under the corresponding
    section of the statute there are to the same effect. The
    two clearest authorities upon the subject in England are
    Snelling v Pulling and Re Gilbert, which are both decisions
    of the Court of Appeal. In both cases it was held that the
    Court of Appeal has no power to hear an appeal on the
    question of costs only, which are left to the judge's
    discretion, unless leave to appeal be given by the judge
    who makes the order, ..... Leave not having been obtained
    in this case, the Court has no jurisdiction to inquire
    whether the learned judge exercised his discretion rightly
    or wrongly."

74. At the time Bank of Australasia v Herrick was decided, s.27 of the Supreme Court Act (1883) 47 Vict No 761, which was the analogue of s.49 of the Judicature Act (1873) (UK) provided:
    "No order made by the Court or any Judge thereof, by the
    consent of the parties, or as to costs only, which by law
    are left to the discretion of the Court, shall be subject
    to any appeal, except by leave of the Court or Judge making
    such order."

75. (To the same effect is the Supreme Court Act (1958) (Vic) s.39.) But under the Supreme Court Act (1970) (Vic), the corresponding provision now in force proscribes an appeal in such circumstances, except by leave of the Court of Appeal. See s.101(2):
    "An appeal shall not lie to the Court of Appeal, except by
    leave of the Court of Appeal, from-
    (a) ...
    (b) a judgment given or order made ... as to costs only
    which are in the discretion of the Court ..."

76. The commentary in Williams Supreme Court Practice (Victoria) (Butterworths) (1973), which is based on the former procedure under the 1958 Supreme Court Act, supports the conclusion I have reached: see that work at 58.1.22:
    "(b) an order as to costs only-

If by law the costs are left to the discretion of the
    Court, there is no appeal except by leave of the Court or
    judge making the order (Supreme Court Act 1958, s.39).
Leave was refused in Jordan v Walker (1885) 11 VLR 346.
    The Full Court cannot entertain an appeal on a question of
    costs only which are by law left to the discretion of the
    court below unless leave to appeal has been obtained from
    that court (Bank of Australasia v Herrick (1886) 12 VLR
832, following Snelling v Pulling (1885) 29 Ch D 85; Re
Gilbert (1885) 28 Ch D 549). Leave is required even though
    an appeal was brought on the merits, which appeal has
failed. Wolfe v Alsop (1886) 12 VLR 887; Critchley v
Australian Urban Investments Ltd (1979) VR 374; Thorne v
Doug Wade Consultants Pty Ltd (1985) VR 433 at 497; cf
Wheeler v Somerfield (1966) 2 QB 94; (1966) 2 All ER 305.
    Section 39 does not apply where the appellant was entitled
    to the costs of the proceedings below and the court below
    had no discretion to refuse costs of the proceedings below
(In the Will of Field (1931) VLR 37). An appeal, seeking
    to vary that portion of a judgment awarding to the
    respondent the costs of an issue, on the ground that that
    issue should have been found in favour of the appellant,is
    not an appeal as to costs only within the meaning of the
section (Brown v Higgins (1899) 5 ALR (CN) 94). If the
    court below does give leave to appeal, the Full court will
    uphold its order as to costs, as being within its
    discretion, unless it is shown that in making the order it
    has violated some principle or been under a misapprehension
    of the facts (Bank of Australasia v Herrick (1886), supra).
See also Talbot v Truslove (1926) 28 WALR 86.

As to whether an order of the court below refusing leave to
    appeal under s.39 of the Supreme Court Act 1958 is final or
    interlocutory for the purpose of appeal to the Full Court,
see Reid v Nairn (1985) 60 ALR 419.

Where an appeal as to costs can be brought only by leave of
    the court below and that court has refused leave, the
    powers of the appeal court to entertain an appeal are
    extremely limited. Either it must be shown that the court
    below failed to exercise its discretion at all or
    alternatively that in exercising its discretion it took
    into account some wholly extraneous circumstances such that
    it could be regarded as having failed to exercise a
    judicial discretion (Altrans Express Ltd v CVA Holdings Ltd
(1984) 1 All ER 685). The appeal court is not so
    restrained, however, if the appeal is by leave. The
    ordinary rules as to review of the exercise of discretion
    apply, and the grant of leave does not mean that the appeal
    court is entitled to substitute its discretion for that of
    the court of first instance (ibid British Russian Gazette,
etc Ltd v Associated Newspapers Ltd (1933) 2 KB 616 at
    p.641; (1933) All ER Rep 320; Keddie v Foxall (1955) VLR
    320 at p.323)."

77. I note in passing that the position in New South Wales has been assimilated to that which now obtains in Victoria, in that appeals as to costs which are in the discretion of the Court, may be entertained only by leave of the Court of Appeal (Supreme Court Act (NSW) 1970 s.101(2)(c)).

78. It will have been noted that in the passage which I have cited from Williams appears the statement that "Leave is required even though an appeal was brought on the merits, which appeal has failed", as to which a number of authorities are cited.

79. Of course, if the Court allows an appeal on the merits, it may vary an order for costs made at the trial, as an incidence of dealing with the appeal. But the appeal court will not deal with a question of costs only, if the purported appeal on the merits was brought colourably in an endeavour to provide an opportunity to challenge the order for costs; see Rieben v Justices for the Yorke Peninsula District and Ors (PC) (1908) AC 454 per Lord Collins:
    "... you cannot appeal for costs alone; but you can bring
    an appeal on the merits; and if that is not a colourable
    ground of appeal for the purpose of introducing the
    question of costs to the Court called upon to review the
    case, the Court of review will treat that, not as an appeal
    for costs, but will, in affirming the judgment given in the
    Court below, consider the question of costs as if it is
    fairly raised."

80. To the same effect, see Donald Campbell and Co v Pollack (supra) (1927) AC per Viscount Dunedin at 756.

81. Furthermore, it does not appear to matter that another party is appealing on the merits, other than as to costs. If there is a cross-appeal as to costs only, it will be subject to the rule (or statutory provisions) requiring the leave of the judge making the order as to costs. See, for example, the Civil Service Co-Operative Society Ltd v The General Steam Navigation Company (1903) 2 KB 756, where there was a plaintiff's appeal as to the merits of the case, and a defendant's appeal as to costs. The defendant's appeal was only entertained in that case as it was thought that the trial judge had no material upon which to exercise the discretion as to costs. I have already referred to passages in Donald Campbell and Co v Pollak where the reasoning in that case was the subject of criticism.

82. It remains to deal with the objection to my hearing the matter.

83. In advancing that objection, Mr Rochow relied on dicta in the decision of the High Court in Paringa Mining and Exploration Co Pty Ltd v North Flinders Mines Pty Ltd and Ors (No 2) (1988) 81 ALR 609 at 615:
    "... it is not satisfactory to leave to the judge whose
    order is under review the exercise of the appellate
    discretion to grant or refuse the injunction pending the
    appeal, especially when a refusal is said practically to
    preclude the granting of the substantive relief claimed in
    the action. The judge appealed from is necessarily
    disadvantaged when it comes to an evaluation of the
    strength of the appellant's attack on the judge's original
    exercise of his discretion. So it was in the present
    case. ... The result is that the appellant to the Full
    Court has been denied the independent consideration of its
    application for an injunction pending the appeal to which
    it was entitled."

84. In my opinion, that dicta is not of application to the circumstances of this case. In the first place, the question of leave to appeal from an order as to costs lies only with leave of the judge who has made the order. Indeed, leave to appeal to the Full Court generally (apart from cases involving an appeal as to costs) must be made "... initially to the judge whose decision is complained of, at the time judgment is delivered ..." (R 94.01(1)(a)).

85. As to an application to strike out an appeal to the Full Court, the jurisdiction may be exercised by a judge in chambers (s.48(2)), (and see R
95.08(1), pursuant to which such an application may be made "to the Full Court or a judge"). Here the question of the competency of the appeal did not in any way relate to the merits of the appeal, but only as to what might be described as purely technical arguments.

86. The inconvenience of a judge not familiar with the course of these proceedings dealing with the present application is manifest. In any event, as will be seen, I refer the critical questions for argument in the Full Court. No proper ground has been demonstrated upon which I should disqualify myself.

87. If I was now finally to determine the application before me, I would reason and conclude as follows:
    1. The mere fact that an appellant asserts that the trial
    judge has applied a wrong principle or otherwise erred in
    law, or misapprehended the facts, does not take a proposed
    appeal as to costs only outside the scope of application of
s.50(2) of the Supreme Court Act.

2. The words in s.50(2) "costs ... left to the discretion
    of the judge" refer to the nature of the jurisdiction
    exercised by the judge, and not to the manner of its
    exercise.

3. There was no appeal as of right from the order as to
    costs, as it was an order as to costs which "by law are
    left to the discretion of the judge" within the meaning of
s.50(2)(b) of the Supreme Court Act.

4. S.50(2) should be construed consistently with s.49 of
    the Judicature Act (1873) (UK), and it is only the judge
    whose decision as to costs is sought to be appealed from
    who may give leave.

5. The notice of cross-appeal dated 17 June 1994 does not
    advance grounds of appeal which take the purported
cross-appeal outside the requirement of s.50(2) of the
    Supreme Court Act that leave of the judge be first
    obtained.

6. Leave having been refused by my order of 11 August 1994,
    it would not have been competent to seek leave from the
    Full Court, or to attempt to appeal from the refusal of
    leave.

7. Striking out of so much of the cross-appeal as related
    to the order for costs was an incidence of the refusal of
    leave. A notice requiring leave, which was filed
    prematurely without leave first having been obtained,
    should not remain on file.

8. The purported appeal by the defendant by notice dated
    18 August 1994 (court file document no 205) against the
    striking out of the cross appeal as to costs is either
    incompetent (the order for striking out being an
    interlocutory order requiring leave to appeal) or an abuse
    of process (being a colourable attempt to circumvent the
    fact that no appeal could be brought from the refusal of
    leave to appeal).

88. In the ordinary course, I would proceed to make orders disposing of the application consistently with those conclusions.

89. However, I am mindful of the fact that s.50(2)(b) of the Supreme CourtAct 1935 has not, so far as I am aware, been the subject of a considered decision by the Full Court. Central to the reasoning lying behind the conclusions which I have expressed is the view that its terms may be equated with s.49 of the Judicature Act (1873) (UK).

90. I note that in Southern Resources Ltd and Ors v Residues Treatment and Trading Co Ltd and Ors (1991) 56 SASR 455 a cross-appeal as to costs only by two defendants, apparently without leave, was considered and allowed. It does not appear from the report that s.50 was argued.

91. The money amount of the costs involved in the point which the defendant wishes to argue before the Full Court is substantial, and could exceed the amount of the plaintiffs' judgment. The defendant considers that it has an appeal of right and is not caught by s.50(2)(b). It will not be able to obtain a ruling of the Full Court on the point if I go on at this stage to make the order which would give expression to my conclusions.

92. In those circumstances, I think it proper to direct, pursuant to s.49, that certain points be argued before the Full Court. Once those points have been argued and a decision given, I can go on to dispose of the application of the plaintiffs, and the request by Mr Rochow for me to exercise my powers under R 84.12 to set aside my order striking out the cross-appeal in part, in the light of the decision of the Full Court. Questions (a) and (b) which I go on to formulate, relate to that latter aspect of the matter, that is, as to R

84.12.

93. It is my intention that these reasons (including the annexures) be placed before the Full Court. It will be for the Full Court to determine whether it will deal with the matter ahead of the hearing of the plaintiffs' appeal. If it does so, it may not need to have before it anything else, apart from these reasons, including the annexures.

94. Pursuant to s.49 of the Supreme Court Act, I direct that the following points be argued before the Full Court:
    "Having regard to the facts and matters referred to in
    these reasons
(a) Is s.50(2)(b) of the Supreme Court Act 1935 of
    application so as to prevent the defendant from bringing an
    appeal to the Full Court in terms of so much of its
    purported Notice of Cross-Appeal dated 17 June 1994 (court
    file document no 189) as relates to costs, other than with
    leave?
    (b) If yes to (a), is it only the trial judge, who has made
    the order for costs complained of, who may grant or refuse
    leave to the exclusion of any other judge or of the Full
    Court?
    (c) Is my order made on 11 August 1994 insofar as it
    strikes out so much of the said Notice of Cross-Appeal as
related to costs, an order which, pursuant to s.50(3)(b) of
    the Supreme Court Act 1935 may only be made the subject of
    appeal by leave?"
    (d) Even if the order of 11 August 1994 may be appealed
    without leave, should the notice of appeal nonetheless be
    struck out as an abuse of process, insofar as to allow the
    notice to stand would circumvent the requirement for leave
under s.50(2)(b), in circumstances where the appellant has
    prematurely lodged a notice of appeal without leave?