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 (h) an opinion, decision, direction or determination of the Court in a Division pursuant to s104, s106 or s112 of the Justices Act. 1902;" The relevant provision of the Justices Act, 1902 is s106. It provides: "(1) The Court shall hear and determine the question or questions of law arising on such case; and shall: (a) reverse, affirm or amend the determination in respect of which the case was stated; or (b) remit the matter to the Justice or Justices with the opinion of the Court thereon; or (c) make such other order in relation to the matter as seems fit: Provided that the Court may cause the case to be sent back for amendment, and thereupon it shall be amended accordingly, and judgment shall be delivered after it has been so amended. 2 UNREPORTED JUDGMENTS (2) The Court may make such order as to costs as seems fit, provided that no Justice or Justices who has or have stated and delivered a case in pursuance of this Act shall be liable to any costs in respect of such appeal." Wood J was dealing with the matter by way of response to a stated case from the Local Court. In such circumstances, it seems to me that the leave of the Court is required, pursuant to the express provisions of s101(2)(h) of the Supreme Court Act. Such a decision still leaves s101(1)(b)(i) with work to do. There are a number of stated cases to the Supreme Court, dealt with in Divisions, which therefore fall within s101(1)(b)(i). They give that subparagraph appropriate operation and do not require the adoption of a construction of the general language of s101(1)(b)(i) which would fly in the face of the specific language of s101(2)(h). S106 of the Justices Act is obviously the provision pursuant to which the stated case in this matter went to the Supreme Court. It was dealt with by a Division, namely by Wood J in the Common Law Division. In those circumstances s101(2)(h) of the Supreme Court Act requires the leave of the Court. The preliminary point suggesting that leave was not required, and that the claimant could proceed to appeal as of right, is overruled. Handley JA I agree. Powell JA I also agree. KIRBY P: The Court so rules. Motion for dismissal of summons for leave to appeal as unnecessary dismissed. Counsel for the Claimant: DP Wilson Instructed by: Craddock Murray and Newmann Counsel for the Opponent: T Molomby Instructed by: Heidtman and Co