AB v State of New South Wales

The appeal concerned the competency of an appeal brought purportedly as of right from the summary dismissal of proceedings. The appellant, AB, sought to appeal against an order of the primary court. The respondent, the State of New South Wales, objected to the competency of the appeal.

The central legal issue before the Court of Appeal was whether the appeal was competent. This required the Court to consider the nature of the order being appealed and the relevant rules governing appeals as of right, particularly in light of the summary dismissal of the proceedings at first instance. A further issue arose regarding the costs of the objection to competency, specifically whether the objection was brought within the time limits prescribed by UCPR r 51.41.

Leeming JA, applying principles of appellate jurisdiction, determined that the appeal was not competent as of right. His Honour departed from the approach taken in *Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd* [1972] WAR 148, finding it did not reflect the correct understanding of the relevant rules. Consequently, the appeal was dismissed as incompetent. Regarding costs, while the objection to competency was brought after the 28-day period stipulated in UCPR r 51.41, and the appellant was prejudiced by the delay, no order was made as to costs.