Lukaszewicz v Polish Club Ltd

The Court of Appeal of New South Wales considered an appeal and cross-appeal commenced as of right by the parties. The central dispute on appeal concerned only the availability of declaratory and injunctive relief, following a primary judgment.

The legal issues before the Court of Appeal were whether leave to appeal was required under section 101(2)(r) of the *Supreme Court Act 1970* (NSW), and if so, whether such leave should be granted. Specifically, the Court had to determine if the provision of declaratory relief alone, as a consequence of a finding of oppression, warranted leave to appeal, particularly where the underlying controversy between the parties had been resolved. The Court also considered whether a substantive injustice would arise if the primary judgment were allowed to stand, or if the issue presented was one of principle or public importance that was more than merely arguable.

The Court reasoned that the nature of the relief sought on appeal, being limited to declaratory and injunctive relief, meant that an appeal as of right was not available. Section 101(2)(r) of the *Supreme Court Act 1970* (NSW) requires leave to appeal in circumstances where the appeal concerns only the granting or refusal of certain types of relief, including declaratory relief. The Court found that the underlying controversy had been quelled by the primary judgment, and therefore, the threshold for granting leave to appeal based on substantive injustice or an issue of principle or public importance was not met.

Consequently, the Court ordered that the summons seeking leave to appeal and cross-appeal be dismissed, and that the purported notices of appeal and cross-appeal be dismissed as incompetent. No further order was made as to the costs of the appeal, cross-appeal, or applications for leave to appeal.