McKENZIE v BADDELEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and PRIESTLY JJA 1 July 1991, 1 July 1991 [1991] NSWCA 196 PRACTICE and PROCEDURE — appeal — from Master — to Court of Appeal — separate question — claim under provisions of Family Provision Act 1982 — following determination, Master dismisses application — whether appeal lies by leave or as of right — held: Appeal lies from the Master to the Court of Appeal as of right in such cases — summons for leave to appeal dismissed as unnecessary to determine. TESTATORS' FAMILY MAINTENANCE — Family Provision practice — Master determines separated question — on basis of determination dismisses claim — appeal — whether to Court of Appeal — whether by leave or as of right — held: appeal lies to Court of Appeal by right. Family Provision Act 1982, s6. Supreme Court Act 1970, s101, s103. Supreme Court Rules Pt 60 r10, r17. Kirby P Before the Court is a summons for leave to appeal from a decision of Master Windeyer dated 16 May 1991. The Master on that day dismissed a summons which had been brought by Mr Renneth McKenzie (the claimant) against Miss Alma Anna Baddeley, the administatrix of the estate of the late Stanley Francis Baddeley who died intestate (the opponent). The proceedings brought by the claimant sought provision to be made for him under the Family Provision Act 1982 (the Act) out of the estate. The claimant asserted that he was a person entitled to benefits under the provisions of that Act. The opponent disputed his entitlement. The claimant's case was that he was eligible to benefits under the Act by reason of a homosexual relationship which had endured with the deceased between 1981 and the latter's death in May 1989. The Master acceded to an application by the parties that there should be ordered a separate determination of the question whether the claimant was an "eligible person" under the Act. Having determined that question against the claimant, the Master dismissed his suit. The claimant wishes to challenge the foregoing order. He filed a summons for leave to appeal. In the way the proceedings developed, this Court has not been concerned in the merits of the appeal. Cf Ball v Newey and Anor (1988) 13 NSWLR 489, 490 (CA); Benney v Jones, unreported, Court of Appeal, 18 June 1991. The Court proceeded to hear the summons, as presented, as a summons for leave. However, during argument it appeared to the Court that the case might be one where the claimant was entitled to appeal to the Court of Appeal as of right. The scheme of Pt60 the Rules of the Supreme Court, governing (relevantly) appeals from Masters, is that normally the appeal lies from a Master to a single Judge in the relevant Division of the Supreme Court and thereafter, from that Judge, to the Court of Appeal. So it appears under Part 60 rl0 SCR: "10. An appeal shall lie to the Court from any decision of d master except in any case where an appeal lies as of right to the Court of Appeal pursuant to r17." As the words of the foregoing rule indicate, it is necessary to have regard to what r17 says. Relevantly it provides: 2 UNREPORTED JUDGMENTS "17. An appeal shall lie to the Court of Appeal in accordance with S101 and s103 of the Act, subject to the leave of the Court of Appeal in any case to which subs(2) and (4) of S101 apply, from any decision of the Court in a Division constituted by a master. (d) in provisions under the Family Provision Act, 1982." As I have said, the present proceedings are a challenge to a decision of a Master under the provisions of the Family Provision Act. The scheme of r17 is designed to permit, subject, where relevant, to the enumerated subsections of s101 of the Supreme Court Act 1970, an appeal to lie to this Court as of right in such proceedings where the proceedings have been decided by a Master. The present case does not fall within either of the excepting sections of s101 referred to in Pt60 r17. Instead, the case falls within s101(1) of the Act being an appeal to the Court of Appeal from a judgment or order of the Court in a Division. The Master for this purpose may enter a judgment or order of the Court in the Division concerned as envisaged by Pt60 rl17(d) SCR. This being the case, the appeal to this Court lies as of right. Accordingly, the case falls within the exception provided under Pt60 r10. An appeal to the Court lies without leave from the Master's final order, although this order in turn followed his earlier determination of a separated question. Cf Smith v Tabain (1987) 10 NSWLR 562 (CA). The foregoing is hardly a surprising result. The assignment of proceedings under the Family Provision Act to a Master is accidental. It is determined within the administration of the Court. Such cases could just as readily be heard and determined by a Judge of the Court. If the matter were determined by a Judge, the appeal to the Court of Appeal would indisputably lie as of right. So also does it if the proceedings are decided by a Master. Master Windeyer originally determined as a separate question the matters set out in his reasons of 7 May 1991. However, in his reasons of 16 May 1991, having determined the separated question, he ordered that the summons be dismissed. This was a final order. The result of it is, effectively, to conclude the claimant's rights under the Family Provision Act unless this Court, on appeal, sets aside that final decision. For those reasons, no leave is required by the claimant to appeal to this Court. The summons to secure leave is misconceived. The orders which I therefore propose are: 1. Summons for leave to appeal dismissed as unnecessary to determine; 2. Grant the claimant seven days within which to file an appeal as of right and extend by seven days the time within which he may appeal; 3. Costs of the summons for leave to appeal to be costs in the appeal; and 4. Order expedition category C to the intent that these proceedings in the Court of Appeal, which necessarily delay the determination of the claims of other parties and the disposition of the estate, should be determined within a space of approximately three months. Mahoney JA I agree. Priestly JA I agree. (at page 4) ORDERS 1. Summons for leave to appeal dismissed as unnecessary to determine; URJ McKENZIE v BADDELEY (Priestly JA) 3 2. Grant the claimant seven days within which to file an appeal as of right and extend by seven days the time within which he may appeal; Costs of the summons for leave to appeal to be costs in the appeal; 4. Order expedition category C to the intent that these proceedings in the 5 Court of Appeal, which necessarily delay the determination of the claims of other parties and the disposition of the estate should be determined within a space of approximately three months; and 5. Either party to have leave to relist the matter on two days notice to the other in the event that it becomes necessary to apply for an order 10 restraining the executrix from distributing the estate pending the outcome of the appeal. » Counsel for Claimant: P W Bates 15 Counsel for Opponent: J Fernon Solicitors for Claimant: Thomson Rick O'Connor Coleman Solicitors for Opponent: N G Whelan