WENTWORTH v WENTWORTH

Court of Appeal (NSW)|1992-08-28|Before: Priestley JA, Young J, Mahoney JA, Clarke JA

SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

MAHONEY JA, PRIESTLEY JA and CLARKE JA 28 August 1992

PRACTICE & PROCEDURE - application for leave to appeal against refusal of interlocutory injunction - claimant (1) argues errors of fact and law, (2) seeks orders for oral examination of opponent and production of documents - Held, (1) no error of fact or law, (2) no reason to make such orders.

Priestley JA. On 11 June 1992 Young J dismissed an application by Ms K. Wentworth for an interlocutory injunction. Young J gave reasons for his decision in which he set out the relevant facts and arguments. On 12 June 1992 Ms Wentworth filed a summons (No 40320 of 1992) seeking leave to appeal from Young J's decision.

The summons was fully argued by Ms Wentworth on 19 June 1992. The court reserved its decision. At that stage I did not think anything put by Ms Wentworth justified this court in granting leave to appeal. Having reconsidered it since, I am still of that opinion.

Further, I do not think that the matters relied upon by Ms Wentworth have enough weight to warrant my indicating my reasons in any more than a very brief and general way. The facts of the matter as at the time of Young J's decision weresufficiently set out in what he then said. So were his reasons. They are on record and I will not repeat them.

In her submissions Ms Wentworth contended that Young J's reasons disclosed errors both of fact and law. I do not agree.

Further, when the material before Young J is looked at broadly, it is quite plain, in my opinion, that it did not support an assertion essential to Ms Wentworth's case, that there was reasonable ground for her fear that her brother was seeking to bring about a situation in which orders for payment of money which she already had against him, and orders for payment of money she hoped to obtain from the High Court, could not be met. The material before Young J was in my opinion all the other way. It included an offer (the detail of which is set out on p 3 of his reasons) which he would have been justified in thinking offered Ms Wentworth all she could have expected to get from her application (or more).

In short, not only was Ms Wentworth unable, in my opinion, to show any such error of fact or law as might indicate that Young J's exercise of discretion had miscarried, (which if shown might lead to leave to appeal being granted), but also, in my opinion, if leave to appeal were granted, it appeared the appeal must fail.

Also before the court on 19 June last was a notice of motion, ancillary to the summons for leave to appeal, seeking that the opponent named in the summons be orally examined before the court and seeking also the production of

documents. I can see no reason why the orders sought should have been made at any stage of the proceedings pursuant to the summons forleave to appeal. It seemed that Ms Wentworth was hoping, if the orders were made, she might obtain evidence, which she had not before then had, which might have supported her case before Young J. I do not think the Court of Appeal should allow its powers to be used in this way by parties seeking leave to appeal against interlocutory orders. In my opinion this application should be dismissed.

A further notice of motion was also before the court on 19 June (filed in CA 40404 of 1991). This application asked this court to exercise original jurisdiction to grant relief of the same kind as that refused by Young J. In general, applications for relief of the kind sought should be made at first instance, as was in fact done in this case. There would be little point in the general practice or in the limitation upon appeals from interlocutory orders, if a litigant were able as a matter of course, having failed at first instance to obtain interlocutory relief, then to have the same matter heard in this court as though there had never been any first instance proceedings. I see no reason why this court should entertain this application.

The result is, in my opinion, that each of the matters before the court should be dismissed with costs.

Mahoney JA. I agree with the judgment of Priestley JA. Clarke JA. I agree entirely with Priestley JA's judgment.

Summons and motion in Court of Appeal proceedings numbered 40320/92 dismissed with costs. 2. Motion in Court of Appeal proceedings 40404/91 dismissed with costs.

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Judgment (16 paragraphs)

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