COSHOTT v THE COUNCIL OF THE MUNICIPALITY OF WOOLLAHRA [1988] NSWCA 28

COSHOTT v THE COUNCIL OF THE MUNICIPALITY OF WOOLLAHRA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 17 October 1988, 17 October 1988 [1988] NSWCA 28

APPEAL — leave to appeal — challenge to order by Judge reversing Master's refusal to strike out a statement of claim as not disclosing a cause of action — decision discretionary — Judge refers to correct principles — decision one of practice and procedure — held: Leave to appeal refused on the pleadings disclosed — necessarily such decision does not affect a fresh pleading which discloses a cause of action.

Kirby P The Court has given consideration to the submissions that have been placed before it. However, it is of the view that this is not a matter in which the time for seeking leave to appeal should be extended or that leave to appeal should be granted.

Time alone would not have prevented consideration of the matter, if it had otherwise merited a hearing of the appeal. However, the Court can see no error in the statement of the applicable principles referred to by Wood I, nor such an error in his Honour's exercise of his discretion as would warrant leave to appeal. The decision was one of practice and procedure and was discretionary. In re the Will of Gilbert (1946) 46 SR (NSW) 318, 322.

The Court's refusing leave to appeal necessarily does not involve any decision by the Court on any proceedings which the claimants may bring by way of fresh process in a statement of claim which discloses, with greater clarity, the cause of action which the claimants sought to urge upon us but which is not sufficiently shown in par 6 of the further amended statement of claim. This was the pleading shown to the Court. It was the pleading which was before Wood I when he reached the conclusion which he reached on 26 August 1988. By our refusal of leave that conclusion is confirmed so far as the present pleadings are concerned.