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Application to vary leave only hearing

1. The source of power to make the listing decision that is in dispute is UCPR, r 51.14. This rule enables "the court" to deal with applications for an order that an application for leave to appeal be heard concurrently with argument on the appeal, and the appeal, in the absence of the public, and without attendance of any person. Pursuant to s 46 of the Supreme Court Act 1970 (NSW), "the court" includes a single judge of appeal.
2. Parties are afforded procedural fairness with respect to the making of an administrative decision under UCPR, r 51.14 as the rules require an applicant and respondent to respectively state in their summary of argument and response "whether the application should be heard with the argument on the appeal, and why": UCPR, rr 51.12(4)(g) and 51.13(2)(b)(iv). Practice Note SC CA1 states that the parties will be advised as to whether a summons for leave to appeal will proceed by way of a leave only hearing or will be heard concurrently with the appeal, by the Registrar, usually at the first directions hearing (par [8]). This occurred here on 5 August 2024.
3. A decision of the President or any other a single judge of appeal under UCPR, r 51.14 is an administrative direction. Such a decision is not amenable to challenge under UCPR, r 36.15, 36.16 or 36.17 because it is not a "judgment or order". Nor is the decision amenable to "discharge or variation" under s 46(4) of the Supreme Court Act. As Campbell JA (Tobias and Young JJA agreeing) said in Avery v Registrar of Births, Deaths and Marriages; Avery v State of NSW (Attorney-General's Department) (2010) 79 NSWLR 354; [2010] NSWCA 72 at [160]: … It is the Court's prerogative to decide how its business will be arranged, and it can give directions about the arrangement of its business without anyone specifically applying for those directions. …
4. To the extent that Campbell JA went on in Avery at [161] to consider the challenge to the listing direction (in that case for a concurrent hearing) as an application to review the decision of a single judge of appeal under s 46(4) of the Supreme Court Act, his Honour's remarks were obiter in circumstances where the Court had already dealt with the leave application and the appeal concurrently.
5. That an administrative decision by the President of the Court of Appeal or any other single judge of appeal under UCPR, r 51.14 with respect to listing a leave application, either for a leave only hearing or a concurrent hearing, is not justiciable (except on grounds of denial of procedural fairness, which is not relied on in this case) is consistent with authority that a party cannot challenge the nomination or allocation of judges to be a member of this Court to hear and determine matters. Thus s 39(1) of the Supreme Court Act 1970 (NSW) relevantly provides: Intra-curial arrangements for the transaction by the Judges of Appeal of the business of the Court of Appeal shall be made by the President of the Court of Appeal with the concurrence of the Chief Justice.
6. In Rajski v Wood (1989) 18 NSWLR 512, Hope AJA said at 526: … it is in my opinion not open to a litigant to institute proceedings in the court to challenge the right or power of a particular judge to hear and determine a case to which he, the litigant, is a party. There is no difference in this regard whether the assignment of the judge to the case has been made pursuant to s 39, or pursuant to the inherent power of the court. In neither case can the litigant challenge the assignment, and proceedings to make such a challenge disclose no reasonable cause of action.
7. Priestley JA agreed with Hope AJA, noting at 523, that there was nothing in s 39 of the Supreme Court Act or otherwise in the law of New South Wales which suggests that it is open to a litigant to make a challenge, by further litigation within the Court, to the administrative arrangements within the Court by which the business of the Court is allocated amongst its judges.
8. One further matter should be mentioned. Insofar as Mr Mohareb claims that he has an appeal "as of right", that is inconsistent with his amended summons seeking leave to appeal, which acknowledges the requirement for leave, as does Mr Mohareb's summary of argument filed in support of a grant of leave to appeal. If a party to proceedings claims that they have an appeal "as of right", the appropriate course is to file a notice of appeal and seek an extension of time to appeal, if necessary, if an appeal is out of time: UCPR, rr 15.9 and 51.16(b). That has not occurred in this case.
9. Par [1] of Mr Mohareb's amended motion filed 20 September 2024 will be dismissed.