MASTORIS v JANKOWSKI [1995] NSWCA 278

MASTORIS v JANKOWSKI SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, SHELLER JA and POWELL JA 5 June 1995

[1995] NSWCA 278

PRACTICE & PROCEDURE — appeal — leave to appeal — discretionary decision — no issue of principle — suggested error of fact finding and injustice — held: Leave refused.

Kirby PI think there may have been some injustice to the. claimant. On the other hand, I can see no error of principle in the approach which Brownie J took or in the effect of the determinations which he made. That determination was open to him in the way the evidence was presented. Accordingly, no reason of principle sufficient to bring the matter on review to this Court has been established.

In saying so, I do not at all rule out the rights of the claimant. If she were advised to bring a fresh application the matter could be placed for reconsideration in the trial Division of this Court. There, the judge would not be required to limit the Court's interference in discretionary decisions of this kind. Legal principle and the time available to the Court limit the Court of Appeal in such matters. That is why the Supreme Court Act requires the appellants to secure leave.

The orders which I would propose are that the summons be dismissed. The claimant is to pay the opponent's costs.

Sheller JA. I agree. Powell JA. I also agree. Kirby P. Such are the orders of the Court.

Orders accordingly.

Counsel for the claimant: C J Whitelaw

Solicitors for the claimant: Delichi and Co Solicitors Counsel for the opponent: D W Elliott

Solicitors for the opponent: Garvis Solicitors