Respondents CW CONSTRUCTION PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION):

Judgment No. [2000] SASC 374

(Full Court: Nyland, Williams and Doyle CJ JJ: Leave To Appeal In Private)

[2000] SASC 374

1 DOYLE CJ This is an application for leave to appeal to the Full Court against a decision of a Judge of this Court.

2 Leave to appeal is required because the Judge dealt with an appeal from an interlocutory decision of a master. By proviso (3)(b) to s 50(1) of the Supreme Court Act, leave is required for a further appeal to the Full Court.

3 The Judge refused leave to appeal to the Full Court. By Rule 94.01, the applicant is entitled to renew the application for leave to appeal, that application then being considered by the Full Court. By Rule 94.03(c) the application for leave to appeal is considered privately.

4 The application has been considered by the court comprising me, Nyland and Williams JJ.

5 We are unanimously of the opinion that leave to appeal should be refused.

6 We have considered whether the application for leave to appeal raises any question of general principle, whether the decision is likely to work a substantial injustice if it stands, and whether there is reason to doubt the correctness of the decision. These are the matters usually considered on such an application, although at the end of the day the Court's power to grant leave is unfettered.

7 In our opinion no question of general principle is raised. The Judge applied well settled rules of law in determining whether the document, as to which the applicant sought an order for delivery up, was privileged. The same applies to the Judge's consideration of whether privilege has been waived, and whether privilege was lost because the document evidences or suggests an abuse of process.

8 We do not consider that a substantial injustice will be caused if the decision is to stand. The application relates to a single document. Nothing is put forward to suggest that the document is of decisive importance.

9 There is no particular reason to doubt the correctness of the decision. It is true that the Judge does not make express reference to the pursuit of an ulterior motive as a possible basis for an abuse of process. That does not appear to be what the case is about. The case appears to turn on whether the document in question discloses an awareness that the claim is unsustainable.

10 The point is adequately dealt with by the Judge and by the Master, whose original decision gave rise to the appeal.

11 For those reasons we find no basis for leave to appeal and accordingly leave to appeal is refused. I direct that the applicant be provided with a copy of these reasons.