MOSSOP v PAPAELLINAS [1993] NSWCA 185

MOSSOP v PAPAELLINAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and POWELL JJA 22 November 1993, 22 November 1993

[1993] NSWCA 185

PRACTICE and PROCEDURE — Court of Appeal — whether appeal lies as of right — whether leave to appeal required — summons for leave to appeal from decision of Judge of the Common Law Division (Wood J) on case stated from the Local Court of New South Wales — whether appeal lies as of right pursuant to s101(1)(b)(i) Supreme Court Act 1970 — whether leave required pursuant to s101(2)(h) of the Act — held: (Kirby P; Handley JA and Powell JA concurring):

(1) To appeal from a decision of a single judge upon a case stated from the Local Court, leave to appeal is required by virtue of the provisions of s101(2)(h) Supreme Court Act and the terms of s106 of the Justices Act 1902;

(2) Motion to dismiss summons for leave as unnecessary, dismissed.

Justices Act 1902, s106. Supreme Court Act 1970, s101. ORDERS Motion for dismissal of summons for leave to appeal as unnecessary dismissed.

Kirby P Before the Court is a summons for leave to appeal from a decision by Wood J, in a case stated from the Local Court of New South Wales. The claimant, who was unsuccessful before Wood J, has by his summons sought leave to appeal. The opponent has raised a question as to whether leave is required, or whether the claimant does not have an appeal as of right.

The question is resolved by reference to s101 of the Supreme Court Act 1970.

That section provides, relevantly:

"(1) Subject to this and any other Act... an appeal shall lie to the Court of Appeal from...

(b) without limiting the generality of para(a)

(i) any opinion, decision, direction or determination of the Court in a division on a stated case;

(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from