Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Donaldson v State of New South Wales [2020] NSWCA 329 Hearing dates: 14 December 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Before: Basten JA Decision: (1) Dismiss the summons seeking leave to appeal filed on 29 October 2020. (2) Order that the applicant pay the costs of the State of New South Wales. Catchwords: APPEALS – application for leave to appeal – proposed appeal incompetent – appeal from refusal of earlier application for leave to appeal – appeals limited to appeals from judgments in a Division Legislation Cited: Supreme Court Act 1970 (NSW), ss 38, 43, 46, 46A, 46B, 101 Cases Cited: Kenneth Allan Donaldson v State of New South Wales [2018] NSWSC 1562 Category: Procedural and other rulings Parties: Kenneth Allan Donaldson (Applicant) State of New South Wales (Respondent) Representation: Counsel: Applicant unrepresented Ms H Allison (Solicitor) (Respondent) Solicitors: Applicant unrepresented Crown Solicitor's Office (Respondent) File Number(s): 2020/307673 Decision under appeal Court or tribunal: Supreme Court of NSW, Court of Appeal Jurisdiction: Civil Citation: [2019] NSWCA 109 Date of Decision: 15 May 2019 Before: Macfarlan JA, Meagher JA File Number(s): 2018/335157 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: On 17 October 2018 Hamill J in the Common Law Division summarily dismissed a proceeding brought by Kenneth Allan Donaldson (the applicant) against the State of New South Wales. [1] Subject to requirements for leave in particular categories of case, an appeal may be brought from a judgment of the Supreme Court in a Division to this Court. [2] Judgments from which an appeal lies only by leave include a judgment on an application for summary judgment. [3] An appeal was available, therefore, from the judgment of Hamill J, but only by leave of this Court. 2. The applicant sought leave, the application being heard on 26 April 2019. On 15 May 2019 the Court, constituted by Macfarlan JA and Meagher JA, dismissed the application with costs. [4] The Court stated that the application was dismissed because the proceedings had "no prospect of success." [5] 3. On 23 October 2020 the applicant, some 16 months out of time were an appeal available, e-filed a notice of intention to appeal, identifying the proceedings "in the court below" as the decision of Macfarlan JA and Meagher JA dismissing the earlier application for leave to appeal. On 29 October 2020 the applicant e-filed a summons seeking leave to appeal. On 4 November 2020 the applicant filed a white folder containing, amongst other documents, a draft notice of appeal. Apart from stating that the first CA judgment was in error, alleging deception, misdirection and false application of law, nothing in the nature of grounds was provided with a sufficient degree of specificity. 4. The appellate jurisdiction of this Court must be found in statute. There is no right of appeal under the general law. No such right is found in s 101 of the Supreme Court Act, which provides for appeals to the Court of Appeal from "any judgment or order of the Court in a Division". [6] The Supreme Court Act thus distinguishes between the Divisions of the Court, provided for in s 38, being the Common Law Division and the Equity Division, on the one hand, and the Court of Appeal on the other. 5. The Court of Appeal may be constituted for any matter by three or more judges of appeal. [7] However, for particular purposes, the powers of the Court may be exercised by a single judge: s 46(1). In such a case, the Court of Appeal may "discharge or vary" a judgment given by a single judge: s 46(4). Subject to that power, as provided in s 46(5), "a judgment, order or direction given or made by a judge of appeal is to have effect as a judgment, order or direction of the Court of Appeal". 6. For some purposes, the Court of Appeal may be constituted by two judges, as directed by the President: s 46A(4). Their decision is to be the decision of the Court of Appeal: s 46A(5). 7. Certain applications, including applications for leave to appeal, may also be heard by two judges: s 46B. Similar provision is made as in s 46A for such two judges to constitute the Court of Appeal and for their decision to be the decision of the Court of Appeal: s 46B(3) and (4). 8. It follows that a decision of two judges to refuse an application for leave to appeal is a decision of the Court of Appeal and no appeal can lie to the Court of Appeal, whether in greater number or differently constituted. Accordingly, the summons seeking leave to appeal in the present matter is incompetent and must be dismissed. 9. The applicant raised a number of points in resistance to an order for costs against him. Some were inconsistent with the basis on which the proceeding has been held to be incompetent; others were not available as reasons for departing from the usual order. 10. The Court makes the following orders: 1. Dismiss the summons seeking leave to appeal filed on 29 October 2020. 2. Order that the applicant pay the costs of the State of New South Wales. ********** Endnotes 1. Kenneth Allan Donaldson v State of New South Wales [2018] NSWSC 1562. 2. Supreme Court Act 1970 (NSW), s 101. 3. Supreme Court Act, s 101(2)(l). 4. Donaldson v State of New South Wales [2019] NSWCA 109 (first CA judgment). 5. First CA judgment at [6] 6. Supreme Court Act, s 101(1)(a). 7. Supreme Court Act, s 43(1). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2020