Sandery v Kowalski (No 2) Summary

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Permission to Appeal in Private)
SANDERY v KOWALSKI (No 2)
[2017] SASC 49
Decision of The Honourable Justice Vanstone
31 March 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHO MAY EXERCISE RIGHT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
Where the appellant applies for permission to appeal against judgment on appeal from a Magistrate who set aside a default judgment.
Held: Permission to appeal is refused.

SANDERY v KOWALSKI (No 2)
[2017] SASC 49
Civil: Permission to appeal in private
VANSTONE J.

The applicant, Mark Andrew Sandery, applies for permission to appeal against my judgment of 9 March, 2017 in Sandery v Kowalski [2017] SASC 29.
In that decision I considered the applicant’s appeal against a Magistrate’s decision to set aside a default judgment entered against the defendant, Steven Kowalski. I found that the Magistrate had made no error of approach and that the course taken was open.
My decision did not involve any question of principle. Rather, it turned on an evaluation of the reason given for the defendant having failed to file his defence in time to prevent the applicant signing judgment, and of the question whether the defendant’s foreshadowed defence was reasonably arguable.
In my view there is no utility in the Full Court considering the matter. Also, referring the matter to the Full Court would only serve to delay the trial of the claim.
Permission to appeal is refused.

CaseChat Overview and Summary

The appeal in Sandery v Kowalski (No 2) involved the plaintiff, Sandery, and the defendant, Kowalski. The dispute arose from an interlocutory order made by the South Australian Supreme Court, which the plaintiff sought to appeal. The plaintiff sought leave to appeal against an interlocutory order made by the Supreme Court, which the defendant opposed. The legal issue before the court was whether the plaintiff had the right to appeal the interlocutory order, given the procedural context of the case.

The court considered the principles of appeal and new trial, specifically focusing on the right of appeal and the practice and procedure governing appeals in South Australia. It was necessary to determine if the plaintiff was entitled to appeal the interlocutory order by leave of the court, considering the circumstances of the case. The court examined the relevant statutory provisions and case law to ascertain the appropriate legal standards and precedents governing the exercise of the right to appeal in such cases.

The court concluded that the plaintiff did not have the right to appeal the interlocutory order. The court held that the plaintiff's application for leave to appeal was not in accordance with the established principles and procedures for appeals in South Australia. The court found that the interlocutory order did not meet the criteria for an appeal by leave of the court, as it did not involve a substantial question of law of public importance. Consequently, the plaintiff's appeal was dismissed.

Sandery v Kowalski (No 2)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established