O'Bryan v Lindholm

The matter of O'Bryan v Lindholm involved an application for leave to appeal from a decision concerning non-party costs orders. The applicant sought to set aside specific findings made by the judge in the context of these costs orders. The Supreme Court was tasked with determining whether the applicant had a common law right to appeal and whether the findings constituted 'determinations' within the meaning of s 17(2) of the Supreme Court Act 1986. Additionally, the court considered whether the application for leave to appeal had any prospect of success given the existence of a Settlement Deed.

The primary legal issue was whether the findings made by the judge in relation to the non-party costs orders could be appealed as they did not constitute 'determinations' under s 17(2) of the Supreme Court Act 1986. The court also needed to ascertain whether the applicant had a common law right to appeal. Furthermore, the court examined whether the Settlement Deed rendered the application for leave to appeal futile.

The court examined the concept of 'determination' as interpreted by the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic). The court held that the concept of a 'determination' in s 17(2) extended to a refusal of leave to institute proceedings, even if not embodied in an order. However, the court concluded that the findings made in the non-party costs orders did not constitute 'determinations' within the meaning of s 17(2). The court also found that there was no common law right to appeal such findings. Additionally, the existence of the Settlement Deed meant that the application for leave to appeal had no prospect of success.

The application for leave to appeal was struck out as incompetent. The court found that the applicant had no common law right to appeal the findings in question, and those findings did not constitute 'determinations' under s 17(2) of the Supreme Court Act 1986. Moreover, the Settlement Deed meant that the application for leave to appeal had no prospect of success.