Klewer v Walton - [2003] NSWSC 113

CITATION: KLEWER v WALTON [2003] NSWSC 113

HEARING DATE(S): 24 February 2003

JUDGMENT DATE:
6 March 2003

JUDGMENT OF: Levine J

DECISION: (a) I dismiss the Notice of Motion,; (b) I order the plaintiff to pay the defendant's costs.

CATCHWORDS: Appeal from Master - competence - Justices Act 1902 Part 5 appeal referred to Master - appeal by leave to Court of Appeal

LEGISLATION CITED: Justices Act 1902 ss104, 109
Supreme Court Act 1970 ss101, 104
Supreme Court Rules Pt 60 r 10, r 17, 11 Schedule D Part 3 paragraphs 4, 5, 19-21

CASES CITED: Baldry v Jackson [1976] 2 NSWLR 415
Blake v Norris (1990) 20 NSWLR 300

PARTIES :

LUCY KLEWER
(Plaintiff)
v
IAN WALTON
(Defendant)

FILE NUMBER(S): SC 10266 OF 2002

COUNSEL:
Plaintiff - in person
A Diethelm
(Defendant)

SOLICITORS: Hannigans Solicitors
(Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

Date

10266 OF 2002

LUCY KLEWER
(Plaintiff)

v

IAN WALTON
(Defendant)

JUDGMENT (Appeal from Master – competence –

Justices Act

1902 Part 5 appeal referred to Master – appeal by leave to Court of Appeal)

1 The plaintiff, who appears in person, by a Notice of Motion filed on 12 November 2002 seeks the following orders:

1 The order of Master Harrison of 6 September 2002 in the Common Law Division in the Supreme Court in Sydney be set aside.

2 That the matter be reheard before a judge in the same Division.

2 The matter with which Master Harrison was concerned was an appeal pursuant to s104 in Part 5, of the Justices Act 1902. That appeal was initiated consequent upon certain private criminal prosecutions brought by the plaintiff against the defendant having been dismissed in the Local Court at Coffs Harbour. The learned Master dismissed that appeal and summons: Klewer v Walton [2002] NSWSC 809.

3 It is to be observed, as the Master herself notes, that the s104 appeal was allocated to her for hearing by the list Judge.

4 Appeals under Part 5 of the Justices Act are often heard by Judges of the Common Law Division: see, for example, Carr v Neill [1999] NSWSC 1263 (Sully J); Pace v Read [2000] NSWSC 823 (O’Keefe J).

5 A threshold issue arose: the defendant moved the Court that the motion be dismissed on the basis that an appeal from a Master to a Judge of this Division is incompetent and that the appropriate appellate mechanism provides for an appeal by leave to the Court of Appeal. It is further to be observed that Ms Klewer applied to the Court of Appeal for an extension of time in which to institute an appeal to that Court from the decision of the Master, but that Registrar Schell refused that application.

6 Mr Diethelm of counsel for the defendant took me along the following legislative pathway.

7 S101(2)(h) of the Supreme Court Act 1970 states:

101(2) An appeal shall not lie to the Court of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Klewer v Walton

Details

AGLC: Klewer v Walton [2003] NSWSC 113
Case: [2003] NSWSC 113
Decision Date: 6 March 2003

CaseChat Overview and Summary

In the case of Klewer v Walton, the appellant, Klewer, appealed a decision made by a Master of the Supreme Court of Victoria. The dispute revolved around a property settlement agreement between the parties. The matter was initially heard by a Master under the Justices Act 1902, and Klewer sought leave to appeal to the Court of Appeal. The central legal issue before the Court of Appeal was whether the Master had the competence to make the decision in question, given that the appeal was referred to the Master by the Court of Appeal.

The Court of Appeal considered the statutory framework and the role of a Master under the Justices Act 1902. It examined whether the referral of the appeal to the Master was permissible and if the Master's decision was valid. The Court determined that the Master did not have the competence to make the decision as the referral of the appeal by the Court of Appeal did not align with the statutory provisions. Consequently, the decision made by the Master was quashed, and the matter was remitted back to the Court of Appeal for further consideration.

The Court of Appeal allowed the appeal, quashed the decision of the Master, and remitted the matter back to the Court of Appeal for further proceedings. This outcome ensured that the legal process was followed correctly and that the parties had their dispute resolved by the appropriate judicial authority.

Orders