Pelechowski v Registrar Court of Appeal

The appeal concerned the Registrar of the Court of Appeal's refusal to grant leave to appeal against a decision of the Supreme Court of New South Wales. The appellant, Mr Pelechowski, sought to appeal against the Supreme Court's dismissal of his application for judicial review of a decision made by the respondent, the Registrar. The Registrar had refused to grant leave to appeal on the basis that the proposed appeal had no reasonable prospect of success.

The central legal issue before the High Court was whether the Registrar had erred in law in refusing to grant leave to appeal. This required the Court to consider the principles governing the grant of leave to appeal, particularly in circumstances where the Registrar forms the view that the proposed appeal lacks a reasonable prospect of success. The Court also had to determine the appropriate standard of review for such a decision by the Registrar.

The High Court held that the Registrar's power to refuse leave to appeal on the ground that the appeal has no reasonable prospect of success is a significant power that must be exercised with caution. The Court emphasised that a mere difference of opinion or a disagreement with the primary judge's findings of fact or application of law is not sufficient to refuse leave. Instead, the Registrar must be satisfied that the appeal is demonstrably without merit and has no real chance of success. The Court found that the Registrar had misapplied the test for refusing leave, as the appellant's grounds of appeal, while perhaps unlikely to succeed, were not so devoid of merit as to warrant refusal at the leave stage.

The High Court allowed the appeal, set aside the Registrar's order refusing leave to appeal, and remitted the application for leave to appeal to the Registrar to be heard and determined according to law.