Ross v Draper [2026] VSCA 47

Ross v Draper (Supreme Court of Victoria, Quigley J, 11 July 2023); Ross v No Respondent (Supreme Court of Victoria, Quigley J, 25 July 2023); Ross v Cattermole (Supreme Court of Victoria, Quigley J, 14 February 2024)

JURISDICTION OF COURTS - Refusal of Prothonotary to accept documents for filing - Judge refusing to direct Prothonotary to accept documents for filing under Supreme Court (General Civil Procedure) Rules 2015, r 28A.04(5) - Applications for leave to appeal - Jurisdiction of Court of Appeal - Whether decision of judge a 'determination of the Trial Division constituted by a Judge of the Court' within Supreme Court Act 1986, s 17(2) - Decision involving no controversy over a right, duty, liability or finalisation of any 'matter' - Decision involving exercise of administrative not judicial power - Decision not a 'determination of the Trial Division' - No jurisdiction in Court of Appeal - Applications for leave to appeal dismissed.

PRACTICE AND PROCEDURE - Applications for leave to appeal - Applications referred for determination by single judge under Supreme Court (General Civil Procedure) Rules 2025, r 64.15(1) - Applications dismissed for lack of jurisdiction - Whether applications 'totally without merit' under Supreme Court Act 1986, s 14D(3) - Whether clearly no prospect of success - Whether oral hearing before enlarged bench could reach opposite conclusion - Applications totally without merit.

WORDS AND PHRASES - 'determination of the Trial Division' - 'matters' - 'totally without merit'.

Supreme Court (General Civil Procedure) Rules 2025, r 64.15(1), Supreme Court (General Civil Procedure) Rules 2015, r 28A.04; Supreme Court Act 1986, ss 10, 14D(3), 17; Constitution Act 1975, s 75A; County Court Act 1958, s 74; County Court Civil Procedure Rules 2018, r 27.06; Federal Court of Australia Act 1976 (Cth), s 24.

O'Bryan v Lindholm [2024] VSCA 130; (2024) 74 VR 496, City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] VicRp 10; [1994] 1 VR 163, applied; Bowman v Transport Accident Commission [2021] VSCA 196; Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353; Manolakis v District Registrar of the Federal Court of Australia (SA) [2008] FCAFC 162; (2008) 170 FCR 426, referred to.

Proposed appeals from refusal to direct acceptance of documents for filing

1. Mr Ross filed applications for leave to appeal from three decisions of a judge of the Supreme Court refusing to direct the Prothonotary to accept various documents for filing. Mr Ross had submitted the documents for electronic filing via RedCrest. In brief, those documents were:

(a) a writ naming persons associated with the Court, a former Attorney-General and the State of Victoria as defendants alleged to have wrongfully prevented Mr Ross from filing various documents in another proceeding;

(b) an application for judicial review in respect of a decision to refuse to waive the fee for commencing a proceeding in the Court of Appeal; and

(c) a writ naming persons and entities associated with the interests of veterans, Commonwealth government ministries and the Commonwealth, seeking orders that Mr Ross be provided with legal assistance in various proceedings.

1. The Prothonotary or, in the case of the second writ, the Deputy Prothonotary, rejected the documents in question for filing pursuant to r 28A.04(2) of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'), which provided:

(2) The Prothonotary or the Registrar may reject a document if the Prothonotary or Registrar considers that -

(a) a document, if it were sealed, would be substantially irregular or constitute an abuse of process; or

(b) there has been a failure to comply with the Rules, an order of the Court or a direction of the Prothonotary or the Registrar after a reasonable opportunity to do so.

1. Mr Ross sought to have the Prothonotary's rejection in each case overridden by a judge, exercising the powers in r 28A.04(5) of the Rules, which provided:

(5) If the Prothonotary or the Registrar -

(a) fails to seal a document within a reasonable time; or

(b) refuses to seal a document; or

(c) rejects a document -

the Court may -

(d) direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document was first submitted in RedCrest for filing;

(e) direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document is so sealed;

(f) make any other order or give any direction that it considers appropriate.[1]

1. The judge refused to direct the Prothonotary to accept the documents for filing. She gave reasons and made orders in each case. By those orders, the Prothonotary's decision was 'upheld'. In two of the three cases, the judge also directed the Prothonotary to refuse to seal the proposed writ pursuant to r 28A.04(2). The judge's reasons and the authenticated orders bore proceeding numbers which had been allocated when Mr Ross attempted to file the documents, and were headed with references to the Common Law Division and the Practice Court, except for the reasons in respect of the application for judicial review, which only referred to the Practice Court. In each case, the parties were described as 'proposed' plaintiffs or defendants.
2. After the judge refused to give the directions sought, Mr Ross filed three applications for leave to appeal, together with a written case and a list of authorities in each case. The Registrar accepted those documents for filing and referred the applications to a single judge of appeal pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2025. Before doing so, the Registrar sought from Mr Ross submissions as to whether the applications engaged the jurisdiction of the Court, and whether Mr Ross had a right to appeal under s 17(2) of the Supreme Court Act 1986. The Registrar supplied Mr Ross with a copy of the decision of this Court in O'Bryan v Lindholm[2] and the decision of Forbes J in Thorpe v Windsor.[3] Mr Ross provided the requested submissions.
3. Submissions were not sought from any of the respondents, who have not been served pending resolution of the question of jurisdiction.[4]
4. Mr Ross submitted that the three decisions he sought to appeal were 'determinations' made by a judge of the Supreme Court within the meaning of s 17(2). A proceeding number had been assigned to each matter, and the documents named the court as the 'Supreme Court', which Mr Ross submitted meant the Trial Division.
5. Mr Ross further submitted that the Rules do not distinguish between a proceeding and a 'proposed' proceeding. He submitted that the Court of Appeal had determined that it had jurisdiction by accepting his documents and allocating a judge to hear the appeals.
6. As already mentioned, the Registrar accepted the applications for leave to appeal against the judge's orders. This is not, therefore, a request under r 28A.04(5) to direct the Registrar to accept documents for filing.[5] There are three pending applications for leave to appeal before the Court.
7. It does not follow, however, that the Court necessarily has jurisdiction to hear and determine those applications or that it has decided that question by accepting the applications for leave to appeal for filing. The jurisdiction of the Court derives from statute, not from decisions of the Registrar to accept documents for filing. That is consistent with the aphorism that it is the 'very first duty of any Court' to consider and be satisfied as to its jurisdiction.[6] In considering and deciding that question, the Court exercises a specific and anterior jurisdiction that it possesses in every case, to decide whether it has jurisdiction to hear and determine the controversy put before it.[7] In the exercise of that specific jurisdiction, the Court may make orders, including an order dismissing a proceeding if the Court finds that it lacks jurisdiction to hear and determine the controversy sought to be resolved by that proceeding.
8. Nothing therefore turns on the fact that the documents that Mr Ross sought to file were given proceeding numbers, or the fact that the judge made orders headed with proceeding numbers and references to the Common Law Division.[8] The Court of Appeal's jurisdiction depends on whether the appeals which Mr Ross seeks to pursue fall within the provisions of the Supreme Court Act governing that jurisdiction.

1. Section 10(1)(a) of the Supreme Court Act provides:

Subject to this Act, the Court of Appeal has jurisdiction to hear and determine -

(a) all appeals from the Trial Division constituted by a Judge of the Court.

1. A distinction is to be drawn, however, between the jurisdiction of the Court to hear and determine an appeal and the right to commence an appeal.[9] The jurisdiction under s 10(1)(a) to hear appeals is limited by reference to the range of decisions in respect of which there is a right to appeal.[10]
2. In that regard, s 17 relevantly provides:

Business to be disposed of by Trial Division constituted by a Judge of the Court or by an Associate Judge

(1) The Trial Division constituted by a Judge of the Court may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the Rules to be heard and determined by the Court of Appeal.

...

(2) Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court.

• Note
  • See, for example, section 14A which requires leave of the Court of Appeal for civil appeals as defined in that section.

1. The issue that arises therefore concerns the meaning of the phrase 'determination of the Trial Division constituted by a Judge of the Court' in s 17(2) of the Supreme Court Act.
2. The Trial Division is established by s 75A(1) of the Constitution Act 1975 as a division of the Supreme Court.[11] It consists of the Chief Justice, and the judges of the Court other than the President of the Court of Appeal and the judges of appeal.[12] The Trial Division may be 'constituted' by an associate judge or a judicial registrar. Under s 80C, a judge of appeal may 'act as a Judge of the Trial Division' in specified circumstances.
3. The issues presented by s 17(2) in the present case are whether the judge constituted the Trial Division and, if so, whether she made a 'determination' in that capacity when she 'upheld' the Prothonotary's decision not to accept the relevant documents for filing. Both questions must be answered in the affirmative to establish jurisdiction.
4. As to the first question, the power in r 28A.04(5) is conferred on 'the Court', and extends to a power to give directions and make consequential orders. It can be assumed for present purposes, without deciding the point, that the judge constituted the Trial Division when she refused to direct the Prothonotary to accept the relevant documents for filing.[13]
5. The second issue depends on the meaning of 'determination' in s 17(2). That provision is to be construed with all the amplitude that the ordinary meaning of its words permits.[14] At the same time, however, the 'determination' referred to in s 17(2) is the same as the 'determination' for which s 17(1) provides.[15] This Court in O'Bryan approved the following observations in the dissenting reasons of Fullagar J in City of Camberwell in respect of the provision equivalent to what is now s 17:

All I will do is state my opinion that the 'determinations' referred to in sub-s (2) are the same determinations as are referred to in sub-s (1), and my opinion that the latter cover only determinations that are made by some order or declaration which is sufficient in its own terms to resolve a matter. An order that damages be assessed for an identified breach may determine an issue; a statement that submissions are rejected does not.[16]

1. In that regard, it is significant that s 17(1) refers expressly to the determination of 'matters' (as sub-section (1) of its predecessor had done).[17] In O'Bryan, the Court said, as to the meaning of 'matter' in this context:

In reading ss 17(1) and (2) together, then, the obvious purpose of s 17(2) is to provide for the crystallisation of a right to appeal after a 'matter' has been finalised. The concept of a 'matter' in s 17(1) will include a proceeding, or some part of a proceeding. It may also extend to a justiciable controversy requiring the determination of the court, including an interlocutory determination. However, any such controversy would involve a controversy over some right, duty, or liability so as to be appropriate for the determination of the court.[18]

1. In my opinion, a decision under r 28A.04(5) not to direct the Prothonotary to accept a document for filing is not a 'determination' within the meaning of these provisions as so understood. The decision does not involve any controversy over a right, duty or liability or finalise any 'matter'. It is a preliminary decision as to whether the Court can hear and determine such a controversy or matter at all. While the power in r 28A.04(5) is vested in the Court, it is a power of an administrative character. The Court is not called upon under r 28A.04(5) to adjudicate in the exercise of judicial power, but to give a direction in the course of the administrative processes which operate as a threshold or gateway for engaging that judicial power, by which the Court decides controversies or 'matters' within the meaning of s 17(1). The Court's decision under r 28A.04(5) is therefore not a 'determination of the Trial Division' as s 17(2), read with s 17(1), requires. At best, it is only a step along the way to such a determination.[19]
2. While not directly on point, the same conclusion has been reached in respect of similar provisions governing other conferrals of appellate jurisdiction. Bowman v Transport Accident Commission concerned the power of a judge of the County Court to direct the Registrar to permit the filing of a document under r 27.06 of the County Court Civil Procedure Rules 2018.[20] The case did not involve s 17(2) of the Supreme Court Act, but the structure of the provisions in respect of appeals from the County Court is similar even though the language is different.[21] In declining to direct the Registrar to accept for filing documents instituting an appeal under s 74 of the County Court Act 1958, this Court relied on decisions of the Federal Court of Australia that characterised a direction to the registrar under such provisions as administrative in character, as distinct from a determination of right made upon an application to the court seeking the exercise of judicial power.[22] In each case, it was held that there was no appeal to the Full Court of the Federal Court.
3. The rights of appeal to the Full Court of the Federal Court that were relevant to those decisions were expressed in terms different to s 17(2). Section 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) gave the Full Court jurisdiction to hear and determine appeals 'from judgments of the Court constituted by a single Judge'.[23] The word 'judgments', not found in s 17(2), readily distinguishes decisions of an administrative character not involving the exercise of judicial power. The words that follow in s 24(1)(a), namely 'of the Court constituted by a single Judge', recall the language of s 17(2), namely 'of the Trial Division constituted by a Judge of the Court'. Although it is not necessary to decide, this correspondence suggests that, just as the Federal Court must be 'constituted' for the exercise of judicial power in order to give a judgment, so must the Trial Division in order to 'determine' a matter under s 17(1).[24]
4. In summary, because the judge's decision under r 28A.04(5) in each of the present cases was not an exercise of the judicial power of the Court to resolve a controversy or 'matter', the judge's decision did not constitute a 'determination of the Trial Division' within the meaning of s 17(2) of the Supreme Court Act, read with s 17(1). Rather, the decision was made by the judge in the exercise of an administrative power conferred by the Rules as part of the procedure for seeking to engage the original jurisdiction of the Trial Division under s 17(1). Since that original jurisdiction had not yet been engaged, there can have been no exercise of that jurisdiction by the judge. Accordingly, the Court of Appeal has no jurisdiction to hear and determine the applications for leave to appeal from her decision in each case.
5. The consequence is that the applications must be dismissed for lack of jurisdiction.

'Totally without merit' - Supreme Court Act¸ s 14D(3)

1. The remaining question is whether this Court should determine that the applications are 'totally without merit' within the meaning of s 14D(3) of the Supreme Court Act. Section 14D(3) provides:

If the Court of Appeal dismisses an application for leave to appeal without an oral hearing and has determined that the application is totally without merit, the applicant has no right to apply to have the dismissal set aside or varied.

1. The power of the Court to make such a determination means that this issue arises in any case where an application for leave to appeal is dismissed without an oral hearing. In the absence of such a determination, the applicant would be entitled to apply to have the dismissal of his application for leave to appeal set aside or varied at an oral hearing before the Court of Appeal constituted by two or more judges: s 14D(2).
2. The fact that an application for leave to appeal does not have a real prospect of success does not mean that it is necessarily totally without merit. There would otherwise be no scope for the dismissal of an application on the papers to be reheard by an enlarged bench at an oral hearing, because every application refused for lacking a real prospect of success would be 'totally without merit'. It is therefore apparent that the class of cases that are 'totally without merit' forms a subset of those that are refused leave to appeal on the basis that they have no real prospect of success.[25] At the same time, while the subset includes cases at the outer extremities of hopelessness, that is not the criterion the legislature has adopted. The issue is addressed by reference to the merits of the individual case, not by locating it at any particular point on a spectrum of hopeless cases.
3. In that context, 'without merit' connotes that the application lacks any prospect of success. At the same time, the emphatic word 'totally' indicates that the composite expression means more than 'without merit'. Although it is of course always necessary to apply the statutory text, the overall import of the expression is that the application clearly has no prospect of success. It does not matter whether the absence of any prospect of success is clear immediately, or whether it becomes clear only upon analysis of the factual and legal basis for the application.[26]
4. Section 14D was enacted in 2014, when the general requirement for leave to appeal in s 14A was introduced. The parliamentary record provides little guidance as to the purpose or meaning of s 14D(3), beyond a statement in the Second Reading Speech that the legislation would 'ensure that completely unmeritorious applications for leave will not unreasonably consume court time and resources'.[27] The approach to s 14D(3) set out above promotes that purpose.[28]
5. Although not referred to in the extrinsic materials, the same statutory language has been considered in other jurisdictions. In particular, r 54.12(7) of the Civil Procedure Rules 1998 (UK) provides, in terms similar to s 14D(3), for a court to refuse permission to proceed in a judicial review application and to record the fact that the application is 'totally without merit', with the effect that the claimant may not request a reconsideration at a hearing.
6. The English rule does not provide for the same degree of finality as s 14D(3). It applies at a lower point in the court hierarchy, and leaves unaffected a claimant's right to have an application heard by an appellate judge. None the less, it is instructive to note that the United Kingdom Court of Appeal has held that 'totally without merit' means 'bound to fail'.[29] The Court emphasised that a judge would not make a determination to that effect unless the judge was 'confident', 'after careful consideration', that the case 'truly is bound to fail'.[30] The third of these qualifications allows the test to be cast as 'truly bound to fail', which is very close to the notion of 'clearly no prospect of success'.
7. In R (Wasif) v Secretary of State for the Home Department,[31] the Court of Appeal stated that the provision for an oral hearing after a single judge has refused permission to proceed 'recognises that oral argument may on occasion persuade a court that a claim for which the judge has refused permission on the papers does in fact have a realistic chance of success'.[32] The Court added that, where there is 'no such chance', a hearing would be pointless and wasteful.[33] Similarly, making a determination under s 14D(3) on the basis that the case clearly has no prospect of success, with or without oral argument, advances the purpose of avoiding wasting the Court's time and resources.[34]
8. The present case has the unusual feature that it has been dealt with without entering into the merits of the application. At one level, it is axiomatic that an application in respect of which the Court lacks jurisdiction clearly has no prospect of success and is totally without merit. But that leaves out of account the merits of the applicant's contentions as to jurisdiction.
9. The fact that the Court is acting in its specific jurisdiction to decide its own jurisdiction does not preclude the making of a determination under s 14D(3). That provision calls for an evaluation of the strength of the argument for granting leave to appeal. There is no reason why there must be excluded from that evaluation the applicant's contention that the Court possesses the necessary jurisdiction to hear and determine the proposed appeal. The Court may evaluate the strength of that contention and, if satisfied that it clearly has no prospect of success, may make a determination as s 14D(3) provides.
10. Accordingly, the issue presented in this case is whether the argument that the Court has jurisdiction in the three matters is totally without merit, that is, it clearly has no prospect of success.
11. For the reasons set out earlier, in my view it is not tenable in light of the authorities mentioned to regard the decision of a judge to decline to direct the Prothonotary to accept a document for filing as an exercise of the jurisdiction of the Trial Division to determine a matter within s 17(1) of the Supreme Court Act. That is especially so when, as here, the document takes the form of initiating process, or related documents, seeking to invoke the Court's jurisdiction. As described earlier, the documents are the means of engaging the Court's jurisdiction, and a decision as to whether they are to be accepted for filing is only the doorway to jurisdiction and cannot constitute an exercise of the jurisdiction the documents seek to invoke. As such, there has been no matter determined under s 17(1), and so there is no 'determination' under s 17(2) to found the jurisdiction of the Court of Appeal.
12. The requirement that there be a controversy or 'matter' to engage the Court's jurisdiction under ss 17(1) and (2), respectively, has been recognised since at least the City of Camberwell case in 1992 and was recently affirmed in O'Bryan. It is underpinned by the express reference to hearing and determining 'matters' in s 17(1) and the reference to a 'determination' in s 17(2). In these circumstances, I am satisfied that Mr Ross's jurisdictional argument clearly has no prospect of success.
13. I therefore determine that the applications for leave to appeal are totally without merit.

• DIRECTORS OF DEFENCE AND VETERANS LEGAL SERVICE

• SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS (CTH)

• SECRETARY OF THE DEPARTMENT OF THE ATTORNEY GENERAL (CTH)

[1] In respect of this subrule and sub-r (2) excerpted above, see now Supreme Court (General Civil Procedure) Rules 2025, r 28.03.

[2] [2024] VSCA 130; (2024) 74 VR 496 ('O'Bryan').

[3] (Supreme Court of Victoria, Forbes J, 3 April 2024).

[4] It follows that the question of jurisdiction is being decided subject to the right of any respondent to make submissions as to that issue if it is decided adversely to the respondents and the matter proceeds.

[5] Cf Re Thorpe [2024] VSCA 172.

[6] Hazeldell Ltd v Commonwealth [1924] HCA 36; (1924) 34 CLR 442, 446 (Isaacs ACJ); Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Ltd [1911] HCA 31; (1911) 12 CLR 398, 415 (Griffith CJ); Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226; (2022) 73 VR 403, 433 [128] (McLeish, Niall and Walker JJA).

[7] New South Wales v Kable (2013) 252 CLR 118, 133 [31] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[8] See, to the same effect, Thorpe v Windsor (Supreme Court of Victoria, Forbes J, 3 April 2024) [20].

[9] Moorabbin Transit Pty Ltd v Bekhit [2016] VSCA 70; (2016) 50 VR 563, 572 [37] (Tate, Ferguson and McLeish JJA); O'Bryan [2024] VSCA 130; (2024) 74 VR 496, 510 [68] (Kennedy, Walker and Macaulay JJA).

[10] O'Bryan [2024] VSCA 130; (2024) 74 VR 496, 510 [69] (Kennedy, Walker and Macaulay JJA); Re Thorpe [2024] VSCA 172 [9] (McLeish JA).

[11] Section 3(1) of the Supreme Court Act confirms that 'Trial Division' means the division of the Court of that name.

[13] See [23] below.

[14] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, 78 [11] (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J agreeing at 87 [40]; O'Bryan [2024] VSCA 130; (2024) 74 VR 496, 511 [72] (Kennedy, Walker and Macaulay JJA); Re Thorpe [2024] VSCA 172 [12] (McLeish JA).

[15] City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] VicRp 10; [1994] 1 VR 163, 169 (Fullagar J) ('City of Camberwell'); O'Bryan [2024] VSCA 130; (2024) 74 VR 496, 514 [88] (Kennedy, Walker and Macaulay JJA); Re Thorpe [2024] VSCA 172 [12] (McLeish JA). In City of Camberwell, the Court dealt with the statutory predecessor of s 17(2), which provided for an appeal 'from any determination of the Court constituted by a Judge'.

[16] O'Bryan [2024] VSCA 130; (2024) 74 VR 496, 512 [75] (Kennedy, Walker and Macaulay JJA), quoting City of Camberwell [1994] VicRp 10; [1994] 1 VR 163, 169 (Fullagar J) regarding what was then s 10 of the Supreme Court Act.

[17] Re Thorpe [2024] VSCA 172 [12]-[13] (McLeish JA).

[18] [2024] VSCA 130; (2024) 74 VR 496, 514 [89] (Kennedy, Walker and Macaulay JJA) (citation omitted). The Court confirmed that 'determination' in s 17(2) includes an interlocutory decision which determines a particular interlocutory dispute: 512 [79] n 51.

[19] O'Bryan [2024] VSCA 130; (2024) 74 VR 496, 513-17 [84]-[96] (Kennedy, Walker and Macaulay JJA); Re Thorpe [2024] VSCA 172 [14] (McLeish JA).

[20] [2021] VSCA 196 ('Bowman').

[21] O'Bryan [2024] VSCA 130; (2024) 74 VR 496, 508-10 [57]-[68] (Kennedy, Walker and Macaulay JJA).

[22] Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353, 357 [16]-[17] (Lee, Whitlam and Jacobson JJ) ('Bizuneh'); Manolakis v District Registrar of the Federal Court of Australia (SA) [2008] FCAFC 162; (2008) 170 FCR 426, 432 [20] (Gray, Branson and Besanko JJ) ('Manolakis').

[23] Cf Bowman [2021] VSCA 196 [12] (Priest and Walker JJA). The provision in issue in Bizuneh was specific to interlocutory appeals (s 24(1A)), but nothing turns on the distinction. After Bizuneh and Manolakis were decided, s 24(1)(a) was amended by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009, sch 2 item 12 to read as follows: 'appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court' (emphasis added).

[24] See [18] above.

[25] It is not necessary to take account of those less common cases where leave is refused despite the proposed appeal having a real prospect of success, that being a necessary but not sufficient condition for the grant of leave: Supreme Court Act, s 14C; Kennedy v Shire of Campaspe [2015] VSCA 47 [14] (Whelan and Ferguson JJA).

[26] See also the decision of the New Zealand Court of Appeal in Mawhinney v Auckland Council [2021] NZCA 144; [2021] 3 NZLR 519, 542 [65] (Brown J for Brown, Gilbert and Katz JJ).

[27] Victoria, Parliamentary Debates, Legislative Assembly, 25 June 2014, 2276-7 (Robert Clark, Attorney-General).

[28] Interpretation of Legislation Act 1984, s 35(a).

[29] R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091; [2014] 1 WLR 3432, 3436 [13] (Maurice Kay LJ, Sullivan LJ agreeing at 3437 [17]), 3437 [19] (Lord Dyson MR) ('Grace').

[30] Ibid 3436 [15] (Maurice Kay LJ, Sullivan LJ agreeing at 3437 [17], Lord Dyson MR agreeing at 3437 [19]).

[31] [2016] EWCA Civ 82; [2016] 1 WLR 2793.

[34] For these purposes, it would be wrong to assume that an applicant who had presented a case on the papers personally would not be legally represented at a subsequent oral hearing.