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The amended notice of appeal be treated as an application for leave to appeal and heard instanter.

IN THE SUPREME COURT OF THE ) No. ACTCA 56 - 2011

) No. SC 95 of 2011

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NORA PRESTON

Appellant

AND: RENAE DUKES

Respondent

Judges: Higgins CJ, Penfold and Rares JJ

Date: 8 May 2012

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This purports to be an appeal to the Court from a decision of the Master who had refused the appellant, Nora Preston, leave to appeal in a judgment delivered on 2 December 2011 following a hearing a week before.

2. The Court of Appeal has jurisdiction to hear an appeal from such a decision only by leave pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT). That provides that when exercising its appellate jurisdiction, the Court of Appeal may hear appeals from orders of the master, except interlocutory orders.

The proceedings before the Master

3. The Master had been dealing with an amended notice of appeal filed by Ms Preston from an enforcement order made by the

Magistrates Court relating to a decision of a presidential member of the ACT Civil and Administrative Tribunal. The presidential member had heard and determined a civil dispute between Ms Preston and the respondent, Renae Dukes, concerning a motor vehicle accident for a claim under Part 4 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (“the Tribunal Act”). The tribunal had jurisdiction to hear a civil dispute application for damages in respect of an amount of up to $10,000 (s 18). In fact, the amount in question was $4,730. 4. In a detailed judgment, the Master dealt with the substantive dispute as he understood it. He treated the proceeding on the basis that, although in form an appeal from the enforcement order, it was an application for leave to appeal from the original decision of the tribunal pursuant to s 86(3) of the Tribunal Act. That provides that an appeal may be brought to the Supreme Court only with the Court’s leave on a question of law or fact from a decision referred to in s 86(1), namely a decision of the appeal tribunal or, if the appeal tribunal president either dismissed the appeal under s 80, or decided not to deal with the appeal under s 85, the original decision of the tribunal.

5. We have been informed that, apparently, Ms Preston sought to institute an internal appeal in the tribunal from the original decision of the presidential member. However, through some confusion, she then failed to appear on the day fixed for the hearing to extend time in which she could appeal from the presidential member’s decision. Her appeal was struck out by the tribunal. She appears to have sought, unsuccessfully, to have that matter reinstated in the tribunal. As the Master noted, Ms Preston’s proceedings before him were not strictly proceedings under s 86 since there was no decision on appeal within the tribunal.

6. Subsequently, Ms Dukes began enforcement proceedings in the Magistrate’s Court under Pt 2.18 of the Court Procedures Rules 2006 (ACT). That led to the matter coming to be dealt with by the Master. He granted a stay of the enforcement process on condition that Ms Preston pay $2,000 into court as security. He reviewed the material before the presidential member, including what was recorded in the transcript and his reasons. His Honour said that having considered the transcript of the evidence and reasons for decision, he was persuaded that no error of law or fact appeared, and that the presidential member arrived at an outcome that was available and justified on the evidence and materials before him.

7. Accordingly, his Honour was persuaded that there would be no prospect of an appeal to the Court by Ms Preston succeeding. His Honour refused Ms Preston leave to appeal with costs, with the consequence that he also refused to interfere with the enforcement order in the Magistrates Court. 8. Ms Preston was assisted today by Mr Hopper before this Court. He is a friend of hers and a retired lawyer. Initially, Ms Preston sought an adjournment of the hearing of her amended notice of appeal so that she could prepare proper appeal papers and make submissions. In order to consider that application, the Court asked Mr Hopper and Ms Preston about the substance of what she wished to argue on the appeal to ascertain whether the proceedings had any merit and whether leave to appeal from the Master’s decision was required. The Court noted that leave appeared to be necessary since the Master had decided no rights by refusing Ms Preston leave to appeal below.

8. Although Ms Preston had represented herself earlier in these proceedings, we are not persuaded that there was any reason why she could not have filed appeal papers in accordance with, and within the time limited by, the Court Procedures Rules. In any event, the Court has heard the substantive arguments which Ms Preston said would have entitled her ultimately to succeed on a properly prepared and instituted appeal. They were unpersuasive. No error in the Master’s reasoning process appeared. His decision was correct for the reasons he gave. Did Ms Preston require leave to appeal?

9. The Master evaluated the merits of Ms Preston’s application as if it had been made under s 86(3) of the Tribunal Act. He concluded that she would not have been entitled to leave to appeal under that provision and so he concluded that her attempt to challenge the enforcement order was hopeless. Although he did not say so in as many words, the Master dismissed the appeal from the Magistrates Court summarily because he considered that it was hopeless. That was an exercise of the Court’s inherent power to protect its own processes and accorded with the purposes of r 21 of the Court Procedure Rules: see Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. The Master’s ultimate decision, as well as the notional leave application under s 86(3), were both interlocutory.

10. The usual test for determining whether an order is final or interlocutory is whether the order as made finally determines the rights of the parties in a principal cause pending between them: Re Luck (2003) 203 ALR 1 at 2 [4] per McHugh ACJ, Gummow and Heydon JJ. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order, otherwise it is an interlocutory order (see also the discussion by Rares J in Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited (2008) 167 FCR 372 at 388-392 [46]-[63]; Donnelly v Maxwell-Smith [2010] FCAFC 154 at [12] per Bennett, Rares and McKerracher JJ).

11. A refusal of leave to appeal is refusal of permission by the Court for a party to institute proceedings by way of appeal in the Court: Collins v The Queen (1975) 133 CLR 120 at 122-123 per Barwick CJ, Stephen, Mason and Jacobs JJ; Coulter v The Queen (1988) 164 CLR 350 at 356 per Mason CJ, Wilson and Brennan JJ, 359 per Deane and Gaudron JJ; Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. An application for leave to appeal from an order refusing leave to bring proceedings under s 86(3) of the Tribunal Act is necessarily an application for leave to appeal from an order that is interlocutory. That is because the order refusing leave decides no rights on a final basis.

12. For that reason, Ms Preston’s notice of appeal in this Court was incompetent because it was necessary for her to make an application for leave to appeal from the Master’s decision. She would only be entitled to appeal if leave were granted: Re Luck 203 ALR 1 at 2 [4] and [5]. The appeal must be dismissed as incompetent. Should leave to appeal be granted?

13. It is important also to consider whether, despite the appeal by Ms Preston being incompetent, as we think it is, she ought nonetheless be granted leave to appeal from the Master’s decision. The ordinary principles that govern a grant of leave to appeal are well established, as McHugh, Kirby and Callinan JJ said in Bienstein v Bienstein (2003) 195 ALR 225 at 231[29], namely an applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and must also show that substantial injustice will result from a refusal of leave to appeal.

14. No error, or even arguable error, has been shown with respect to the Master’s decision. It is carefully reasoned and, in our opinion, clearly correct. Accordingly, there is no basis upon which this Court could grant leave to appeal.

15. We will treat the amended notice of appeal as an application for leave to appeal and hear that instanter. However, leave to appeal should be refused and Ms Preston should be ordered to pay the respondent’s costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 8 June 2012

Appellant: In person

Counsel for the Respondent: Mr B Redpath

Solicitor for the Respondent: Blumers Personal Injury Lawyers

Date of hearing: 8 May 2012

Date of judgment: 8 May 2012

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