Valov v Dell No. Scgrg-87-836 Judgment No. S6624

[1998] SASC 6624

VALOV  v  DELL

Full Court: Doyle CJ, Cox and Matheson JJ
DOYLE CJ

This is an application for leave to appeal against a decision of Justice Prior given on 8 September 1997.

By his decision Justice Prior dismissed an appeal against an order made by a Master of the Court, and ordered the present applicant to pay the costs of the appeal to him.

Prior J referred to the Full Court the application for leave to appeal against his decision.

The application for leave to appeal to the Court was made in writing pursuant to r.94.03 and, as directed by Prior J, upon notice to the other parties.  The Court has had the benefit of written submissions from all parties.

The application was considered in private by the Full Court comprising me, Cox J and Matheson J.

Leave was sought to appeal on the grounds that, in the course of the conduct of the appeal before Prior J, the judge made remarks which would give rise to an apprehension of bias on his part, that bias being adverse to the present applicant.  We are unanimously of the opinion that leave should not be allowed to appeal on that ground, because we are of the view that it has no realistic prospect of success.

Leave was also sought to appeal on the grounds that the decision of the Master, and the decision of Prior J upholding that decision, were both wrong.  The decision of the Master was to order that the action be stayed unless and until the present applicant should pay the sum of $10 000 into Court.  That decision was made in the context of an order by the Master ordering that the second plaintiff in the proceedings be disjoined.

We are of the opinion that leave should be granted to appeal on grounds challenging the correctness of the Master’s decision, but that the leave to appeal should be limited to that ground.

Accordingly, the order of the Court is that the time within which the application for leave to appeal be made be extended to the 12th November 1997, leave to appeal be granted, but that the leave be limited to grounds challenging the correctness of the order to stay the action unless the present applicant pay into Court the sum of $10 000.