Preston v Dukes

[2012] ACTCA 29

NORA PRESTON v RENAE DUKES [2012] ACTCA 29 (8 May 2012)

PRACTICE AND PROCEDURE – purported appeal from a decision of the Master – whether decision of the Master was final or interlocutory – notice of appeal in Court of Appeal incompetent – notice of appeal treated as application for leave to appeal decision of the Master – whether leave to appeal the decision of the Master should be granted – no error shown with respect to the decision of the Master –application for leave to appeal dismissed

Supreme Court Act 1933 (ACT), s 37E
ACT Civil and Administrative Tribunal Act 2008 (ACT), Part 4, ss 18, 85, 86

Court Procedures Rules 2006 (ACT), Pt 2.18, r 21

Bienstein v Bienstein (2003) 195 ALR 225
Collins v The Queen (1975) 133 CLR 120
Coulter v The Queen (1988) 164 CLR
Donnelly v Maxwell-Smith [2010] FCAFC 154
Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited (2008) 167 FCR 372
Re Luck (2003) 203 ALR 1
Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194
Walton v Gardiner (1993) 177 CLR 378

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 56 - 2011
No. SC 95 of 2011

Judges:  Higgins CJ, Penfold and Rares JJ
Court of Appeal of the Australian Capital Territory
Date:           8 May 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 56 - 2011
  )          No. SC 95 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NORA PRESTON

Appellant

AND: RENAE DUKES

Respondent

ORDER

Judges:  Higgins CJ, Penfold and Rares JJ
Date:  8 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The amended notice of appeal in the Court of Appeal be dismissed as incompetent.

1. The amended notice of appeal be treated as an application for leave to appeal and heard instanter.

1. The application for leave to appeal be dismissed.

1. The appellant pay the respondent’s costs.

IN THE SUPREME COURT OF THE     )          No. ACTCA 56 - 2011
  )          No. SC 95 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NORA PRESTON

Appellant

AND: RENAE DUKES

Respondent

Judges:  Higgins CJ, Penfold and Rares JJ
Date:  8 May 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This purports to be an appeal to the Court from a decision of the Master who had refused the appellant, Nora Preston, leave to appeal in a judgment delivered on 2 December 2011 following a hearing a week before. 

2. The Court of Appeal has jurisdiction to hear an appeal from such a decision only by leave pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT).  That provides that when exercising its appellate jurisdiction, the Court of Appeal may hear appeals from orders…