Magiera & Anor v Cekan & Anor

MAGIERA & ANOR
v
CEKAN & ANOR
[2024] HCASL 90
A23/2023

The applicants seek special leave to appeal from a decision of the Court of Appeal of the Supreme Court of South Australia (Livesey P, Doyle and Bleby JJA) allowing the respondent's appeal against a decision of the Supreme Court of South Australia (Stanley J) and ordering, among other things, that the grant of probate in solemn form of a will dated 28 September 2016 of Michael Kowalczyk (deceased) be revoked.
The application raises no issue of general principle that is of public importance and it is not in the interests of the administration of justice for leave to be granted. An appeal to this Court would enjoy no prospects of success.
Special leave to appeal is refused with costs. Those costs, as well as those of the applicants, are to be paid from the estate.
Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
11 April 2024

CaseChat Overview and Summary

In the case of Magiera & Anor v Cekan & Anor, the applicants, including Magiera and another, sought special leave to appeal from the Court of Appeal of the Supreme Court of South Australia. Their appeal was against a decision which allowed the respondent's appeal against a prior decision of the Supreme Court. The earlier decision involved the grant of probate in solemn form of a will dated 28 September 2016, pertaining to the deceased, Michael Kowalczyk. The Court of Appeal had ordered, among other things, that the grant of probate be revoked. The applicants aimed to challenge this decision, arguing that it should be reviewed by the High Court.

The legal issues that the court needed to decide pertained to whether special leave to appeal should be granted, given that the application did not raise any general principles of public importance or suggest that it was in the interests of the administration of justice. Furthermore, the court needed to assess if the appeal had any prospects of success. The primary focus was on the procedural aspects of the application for special leave, rather than the merits of the underlying case concerning the will.

The court's reasoning focused on the criteria for granting special leave to appeal, which includes considering whether the case involves a matter of general principle of public importance or if it is in the interests of the administration of justice. The Court concluded that the application did not meet these criteria and that an appeal would have no prospects of success. Consequently, the application for special leave was refused. The costs associated with the application, as well as the costs of the applicants, were to be paid from the estate of the deceased.

The final orders of the court were that special leave to appeal was refused with costs. These costs, along with the costs of the applicants, were to be paid from the estate of Michael Kowalczyk. This decision effectively concludes the applicants' attempt to appeal the decision of the Court of Appeal of the Supreme Court of South Australia.

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