EMMERTON v MINISTER FOR NSW POLICE and ORS [1994] NSWCA 90

EMMERTON v MINISTER FOR NSW POLICE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 7 February 1994

[1994] NSWCA 90

Priestley JA Before me is a notice of motion by claimants who are the respondents named in a notice of appeal filed by Mr Emmerton, who is the opponent in the notice of motion before me and who was the applicant before Badgery-Parker J for certain orders which Badgery-Parker J refused and against which Mr Emmerton wishes to appeal. Those orders of Badgery-Parker J are plainly interlocutory orders and plainly orders which cannot be made subject simply to the notice of appeal, but which must be the subject of application for leave to appeal before any notice of appeal can be filed.

A question arose in the course of discussion this morning whether a single judge of the Court of Appeal under s46 could make the order sought in the claimants notice of motion which was that Mr Emmerton's notice of appeal be struck out as being incompetent.

In my view the better construction of s46 would permit a notice of appeal to be struck out as incompetent by a single judge in circumstances where a purported notice of appeal should have been preceded by a successful application for leave to appeal.

It is not necessary to decide that question however, because as certain difficulties were pointed out to Mr Emmerton in the course of his submissions to the court, he indicated that he wished to seek the courts leave to amend his proceedings in the record of the court, namely, his notice of appeal, to transform it into an application for leave to appeal. It is that application that I am going to decide and that is an application which clearly, on any view of s46, I have power to deal with sitting alone.

The application to amend gained one layer of complication when Mr Emmerton included in it leave to put in his new document an application for leave to appeal against a decision given by Levine J some time before the application was made to Badgery-Parker J by Mr Emmerton, the dismissal of which has led him to wish to appeal against that last named judge's orders.