[2019] NSWCA 257

Gee v Office of the Director of Public Prosecutions

Application for leave to appeal dismissed with costs

Catchwords

CIVIL PROCEDURE – leave to appeal – from interlocutory orders – where primary judgment did not involve any question of principle – where primary judge had discretion as to costs

Cases cited

PPK Willoughby Pty Ltd v Baird[2019] NSWCA 48

Legislation cited

Crimes (Appeal and Review) Act 2001 (NSW)
s 53(3)(b)
Local Court Act 2007 (NSW) § 70(1)(c)
Supreme Court Act 1970 (NSW) § 69
Uniform Civil Procedure Rules 2005 (NSW) § 42.1

Judgment

[1]
BELL P: The decision from which leave to appeal is sought is that of Adamson J of 24 May 2019: [2019] NSWSC 618. On that occasion, her Honour made the following orders:
[2]
It is in respect of the third order that leave to appeal is sought.
[3]
For most of the period during which the proceedings were on foot including up until shortly prior to the hearing, the plaintiffs were seeking leave to appeal under s 70(1)(c) of the Local Court Act 2007 (NSW) from a decision of Day LCM which depended on there being an avenue of appeal open pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). An alternative claim for relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) was added, having first been notified in late 2018.
[4]
The detail of the procedural history in the matter and the ramifications of that procedural history in terms of costs is set out with characteristic care by the primary judge in para [16] and following of her Honour's reasons.
[5]
The decision as to costs from which leave to appeal is sought has the following characteristics:
[6]
This Court has made it plain time and again that decisions having characteristics of the kind I have identified will generally not attract a grant of leave to appeal. That is on top of the general obligation on an applicant for leave to appeal to establish an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable. The relevant authorities are collected in the joint reasons of Simpson AJA and myself in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48.
[7]
The current application, in my opinion, falls well short of meeting any of these criteria. The primary judge's decision was not only open to her but was, in my opinion, soundly based. There is no need or utility to revisit her reasons which are clear and cogent.
[8]
I would dismiss the application for leave to appeal with costs.
[9]
MACFARLAN JA: I agree with the President.
[10]
BELL P: The orders of the Court, therefore, are: application for leave to appeal refused, with costs.