Raymond Arthur Fitzpatrick v Tony Kidney

Raymond Arthur Fitzpatrick, the applicant, sought leave to appeal out of time from two decisions of the Supreme Court of the Australian Capital Territory. The first decision, by Master Harper, refused the applicant leave to appeal from a Small Claims Court order requiring him to pay conduct money and witness expenses. The second decision, by Justice Connolly, refused the applicant a stay of proceedings in relation to Master Harper's order. The Court of Appeal of the Australian Capital Territory heard the application for leave to appeal.

The primary legal issue before the Court of Appeal was whether the applicant had established grounds for leave to appeal out of time from the Master's and Justice Connolly's decisions. Specifically, the court had to consider whether the applicant's arguments met the criteria for granting leave to appeal from a Small Claims Court judgment, as stipulated by section 275 of the *Magistrates Court Act 1930* (ACT), which requires the decision on a question of law to be wrong or the proceedings to have been unfair. The court also considered the significant delay in bringing the application and the applicant's entitlement to a stay of proceedings.

The Court of Appeal reasoned that the applicant's challenge to the Small Claims Court's orders regarding conduct money and witness expenses primarily raised issues of fact and the exercise of judicial discretion, rather than a question of law. The court noted that section 275 of the *Magistrates Court Act* does not permit appeals based on erroneous findings of fact or inappropriate discretionary decisions. Furthermore, the court found it understandable that the Master would refuse leave to appeal an interlocutory decision involving a small sum, given the legislature's intention for Small Claims Court decisions to be normally final. The court also highlighted the extensive delay in bringing the application, which was almost two years after the Master's judgment, and the respondent's right to act on the assumption that no appeal would be pursued. Regarding the refusal of a stay, the court found no grounds had been established, as there was no suggestion of the respondents being likely to divest assets or flee, and no other reason for a stay to be granted.

The Court of Appeal dismissed the applicant's application for leave to appeal and ordered that the applicant pay the respondents' costs.