TRAU v UNIVERSITY OF SYDNEY [1994] NSWCA 315

TRAU v UNIVERSITY OF SYDNEY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and COLE JJA 22 August 1994

[1994] NSWCA 315

Priestley JA The court has before it an application by the University of Sydney that an appeal initiated by a Notice of Appeal filed in the court on 21 April 1994 be dismissed as incompetent for want of leave or, in the alternative, for want of prosecution.

The court intends to dismiss the appeal as incompetent for want of leave, and does not need to deal with the alternative application.

The Notice of Appeal filed said that the appeal was from the whole of the orders of Smart J, after first referring to proceedings heard on various dates in 1992 and 1994, and concluded on 17 March 1994.

Smart J made orders on 17 March 1994, which were entered on 23 March 1994. He also made orders on 24 March 1994 on a motion for summary judgment by the University.

A paragraph in the Notice of Appeal sought an order dismissing the University's motion for summary judgment. Because of that, it seems to the court that the Notice of Appeal was probably directed towards the orders of Smart J which were made on 17 March 1994 and entered on 23 March 1994, and the orders made on 24 March 1994.

The University has brought its Notice of Motion on the basis that the two sets of orders were interlocutory. Those which were formally entered on 23 March 1994 related to the striking out of pleadings, and those on 24 March 1994 were orders for summary judgment.

For the University it has been frankly conceded that the summary judgment orders, by reason of the provisions of the Supreme Court Act, are to be treated in the same way as the interlocutory strike out orders. Such orders must be the subject of a grant of leave by this Court before an appeal against them can be pursued, or a Notice of Appeal filed.