NEVETT v O'LEARY [1997] NSWCA 220

NEVETT v O'LEARY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and SHELLER JJA 27 November 1997

[1997] NSWCA 220

Priestley JA The proceedings in this matter involve, first, an application for extension of time and then a summons for leave to appeal against a judgment handed down by Judge Newton on 7 October, 1997.

Legislation which came into force shortly before that date made it necessary for leave to appeal to be sought in a case involving the sum for which judgment was given in the matter under appeal which was a figure including $20,000 for general damages and totalling $32,000. Because of the recency of this new legislation it was not immediately realised that a right of appeal was no longer available in such a case. As soon as that became known to the claimant the two applications were made, first, for an extension of time and, second, for leave to be granted.

As to the first application the court thinks that the misapprehension of the situation concerning the right to appeal is entirely understandable as may have been demonstrated by questions the court asked earlier this morning, and the court grants an extension of time for the making of the application for leave.

As to that application the court is of the view that it should be refused. The amount involved is small in a comparative sense and well within the range in which the legislation now requires that leave be granted before an appeal can be brought. No question of general principle appears to be involved. The complaint is that the amount of general damages awarded was excessive. It is not at all clear to the court that if an appeal were to go forward that contention could succeed. The case seems to us to be right in the area of those cases which the legislature has decided should only go to appeal where there is some clear point of principle, or some clear possibility of injustice involved. No possibility of such matters appears to us to be evident in the present case.