Donaldson v State of New South Wales

BASTEN JA: On 17 October 2018 Hamill J in the Common Law Division summarily dismissed a proceeding brought by Kenneth Allan Donaldson (the applicant) against the State of New South Wales. [1] Subject to requirements for leave in particular categories of case, an appeal may be brought from a judgment of the Supreme Court in a Division to this Court. [2] Judgments from which an appeal lies only by leave include a judgment on an application for summary judgment. [3] An appeal was available, therefore, from the judgment of Hamill J, but only by leave of this Court.

The applicant sought leave, the application being heard on 26 April 2019. On 15 May 2019 the Court, constituted by Macfarlan JA and Meagher JA, dismissed the application with costs. [4] The Court stated that the application was dismissed because the proceedings had “no prospect of success.” [5]

On 23 October 2020 the applicant, some 16 months out of time were an appeal available, e-filed a notice of intention to appeal, identifying the proceedings “in the court below” as the decision of Macfarlan JA and Meagher JA dismissing the earlier application for leave to appeal. On 29 October 2020 the applicant e-filed a summons seeking leave to appeal. On 4 November 2020 the applicant filed a white folder containing, amongst other documents, a draft notice of appeal. Apart from stating that the first CA judgment was in error, alleging deception, misdirection and false application of law, nothing in the nature of grounds was provided with a sufficient degree of specificity.

The appellate jurisdiction of this Court must be found in statute. There is no right of appeal under the general law. No such right is found in s 101 of the Supreme Court Act, which provides for appeals to the Court of Appeal from “any judgment or order of the Court in a Division”. [6] The Supreme Court Act thus distinguishes between the Divisions of the Court, provided for in s 38, being the Common Law Division and the Equity Division, on the one hand, and the Court of Appeal on the other.

The Court of Appeal may be constituted for any matter by three or more judges of appeal. [7] However, for particular purposes, the powers of the Court may be exercised by a single judge: s 46(1). In such a case, the Court of Appeal may “discharge or vary” a judgment given by a single judge: s 46(4). Subject to that power, as provided in s 46(5), “a judgment, order or direction given or made by a judge of appeal is to have effect as a judgment, order or direction of the Court of Appeal”.

For some purposes, the Court of Appeal may be constituted by two judges, as directed by the President: s 46A(4). Their decision is to be the decision of the Court of Appeal: s 46A(5).

Certain applications, including applications for leave to appeal, may also be heard by two judges: s 46B. Similar provision is made as in s 46A for such two judges to constitute the Court of Appeal and for their decision to be the decision of the Court of Appeal: s 46B(3) and (4).

It follows that a decision of two judges to refuse an application for leave to appeal is a decision of the Court of Appeal and no appeal can lie to the Court of Appeal, whether in greater number or differently constituted. Accordingly, the summons seeking leave to appeal in the present matter is incompetent and must be dismissed.

The applicant raised a number of points in resistance to an order for costs against him. Some were inconsistent with the basis on which the proceeding has been held to be incompetent; others were not available as reasons for departing from the usual order.

The Court makes the following orders: