Kowalski v Mitsubishi Motors Australia Ltd

[2004] SASC 290

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LTD

Judgment of The Full Court (ex tempore)

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)

8 September 2004

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES

Application for an order that certain questions be stated in the form of a special case to Full Court - application dismissed by a Master - whether appeal against the decision of the Master lies to a single judge or the Full Court - notice of appeal struck out as incompetent.

Supreme Court Rules 1987 r 106.05(2), r 106.05(3)., referred to.

KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LTD
[2004] SASC 290

Full Court:       Doyle CJ, Duggan and Gray JJ

1. DOYLE CJ           This is an appeal against a decision by a Master dismissing an application by Mr Kowalski for an order that certain questions be stated in the form of a special case for consideration by the Full Court.  The order was made by the Master on 9 June 2004.  Mr Kowalski did not appeal until 9 July 2004.

2. The appeal faces three preliminary obstacles.

3. The first is that by Supreme Court Rule 106.05(2) the appeal lies to a single judge and not to the Full Court.  The second obstacle is that an extension of time is required.  The appeal should have been instituted within seven days by virtue of rule 106.05(3).  It was lodged well outside that time.  The third preliminary obstacle is that even if the appeal did lie to the Full Court, and in my opinion it does not, leave to appeal would be required because the Master’s decision was an interlocutory decision.  It does not finally dispose of Mr Kowalski’s rights.

4. It appears to me that the appeal is incompetent and should be struck out. The reason for that is that the appeal does not lie to the Full Court at all.  If there is to be any appeal it can only be to a single judge.  Quite apart from that in my opinion the appeal is entirely without merit. The questions that Mr Kowalski seeks to raise are variously hypothetical or apparently irrelevant to the proceedings, or simply not suitable questions for a case stated to the Full Court. For those reasons I would strike out the notice of appeal as incompetent.

5. DUGGAN J          I agree with the order proposed by the Chief Justice for the reasons which he has given.

6. GRAY J                 I agree.

7. DOYLE CJ           Accordingly the order of the Court is that the notice of appeal be struck out as incompetent.

8. The Court orders secondly that the appellant pay the respondent’s costs of the appeal.