Kowalski v Layton

The matter of Kowalski v Layton was heard by the Supreme Court of South Australia, wherein the appellant, Kowalski, challenged a decision made against them by the respondent, Layton. Kowalski sought to appeal a decision that had been rendered in the lower court, but the appeal was instituted without obtaining the necessary leave from the Supreme Court. The appellant also filed an application for disqualification against the judge presiding over the appeal, citing two grounds for disqualification. The first ground was based on the fact that the judge had previously been a member of the court that had decided a matter adversely to the appellant. The second ground was that the judge and the respondent were now members of the same court.

The legal issues that the court was required to decide in this case were whether the appeal had been properly instituted and whether the application for disqualification was valid. The court held that the appeal had not been instituted with the leave of the court, as required by the orders made by the Honourable Justice Bleby on 19 April 2005. The court also dismissed the application for disqualification, rejecting the first ground on the basis that the court had only decided a question of law, and rejecting the second ground on the basis that the principle of necessity applied.

The court's reasoning was that the remission of the fee payable for the notice of appeal did not constitute the granting of leave to institute the appeal, but rather, it was a separate matter concerning the remission of the fee due to the poverty of the party or for any other proper reason. The court concluded that the appeal had been instituted without the leave of the court, and it should therefore be dismissed. The court also noted that it would hear the parties on the question of costs.