FINNEGAN v MUTUAL ACCEPTANCE (INSURANCE) LTD (IN LIQUIDATION) [1995] NSWCA 147

FINNEGAN v MUTUAL ACCEPTANCE (INSURANCE) LTD (IN LIQUIDATION)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirpy P, PRIESTLEY JA and MEAGHER JA 18 September 1995

[1995] NSWCA 147

APPEAL — summons for leave — application for transfer into Supreme Court of District Court proceedings — application for leave to add a cause of action not included in the original claim — applications rejected by Master Malpass — on appeal, decisions of the Master confirmed by Allen J — on summons for leave to appeal to the Court of Appeal — held: Summons dismissed — discretionary decisions in matters of practice and procedure — third hearing — correctness of decisions not attended by sufficient doubt to warrant grant of leave — possible futility of grant — leave refused — no issue of principle.

Supreme Court Rules, Pt 20 r 4(5).

Kirby P. This is the third hearing, in one form or another, of the present application. It is the second appellate hearing. The initial decision of Master Malpass, which was confirmed by Allen J, involved discretionary considerations. It was made in a matter of practice and procedure. It also involved a consideration of the futility of the orders sought by the claimant.

In my opinion, the decision of Allen J, which is the subject of the application for leave, is not attended by sufficient doubt to warrant the grant of leave to appeal from it. Nor do I consider that, if leave were granted, there would be sufficient prospects of success to warrant that course.

I propose that the summons be dismissed. The claimant must pay the opponent's costs.

Priestley JA. I agree. Meagher JA. I agree.

Kirby P. The Court orders that the summons be dismissed. The claimant must pay the opponent's costs.

Summons dismissed with costs.

Counsel for the claimant: Douglas Knaggs (Solr) Solicitors for the claimant: Douglas Knaggs Counsel for the opponent: M J Slattery QC