Ewert v Audehm

Ewert and another, the applicants, appealed against a decision of the Supreme Court of Victoria which had dismissed their application for leave to appeal a decision of the Victorian Civil and Administrative Tribunal. The applicants sought leave to appeal the Tribunal's finding that they did not have standing to pursue a proceeding against the builder and architect for defects in the construction of their home. The applicants had previously claimed against the Housing Guarantee Fund and executed a Release and Authority in respect of that claim. The release and authority was to be read as assigning to the guarantor of the Fund all rights of action of the applicants against the builder and architect. The applicants argued that the release and authority did not assign those rights and sought to appeal the Tribunal's decision to the Supreme Court. Leave to appeal was granted by a Master of the Supreme Court but subsequently rescinded by a judge of the Trial Division.
The primary legal issue before the court was whether a judge of the Trial Division had the power to rescind leave to appeal which had been granted by a Master. The applicants contended that the Trial Division judge was without jurisdiction to do so, and that the proper course was for the judge to have referred the matter to a full bench of the court. The respondents submitted that the Trial Division judge had inherent jurisdiction to control the court's process, including the grant and withdrawal of leave to appeal.

The court held that a judge of the Trial Division had the inherent power to grant or withdraw leave to appeal. The court held that the power to grant leave to appeal was not limited to the initial grant of leave by a Master, but also included the power to subsequently withdraw leave if circumstances changed. The court held that the power to withdraw leave to appeal was an exercise of the court's inherent jurisdiction to control its own process and prevent an abuse of the court's procedure. The court held that the Trial Division judge was not required to refer the matter to a full bench, but could exercise the power to withdraw leave to appeal on his or her own.

The appeal was dismissed.